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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. Nom, 426
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Mary F. Costello (John McKee, with her),
David W. Cunis, Assistant District Attorney, for the
Commonwealth.
Before
WILKINS, C.J., and ABRAMS, LYNCH, GREANEY,
LYNCH, Justice.
After a
jury trial, the defendant was convicted of murder in the first degree by reason
of deliberate premeditation. (FN1) On appeal, the defendant contends that the
judge erred in: (1) allowing the
prosecutor's peremptory challenge of the only black juror in the venire; (2) admitting the defendant's second, third,
and fourth statements to the police after suppressing his first statement; (3) ruling that the defendant's Miranda waiver was voluntary; (4) denying the defendant's motion to dismiss
based on the destruction by police of potentially exculpatory evidence; (5) declining to instruct the jury on
intoxication; and (6) admitting protective
orders that the victim obtained against the defendant. The defendant also requests that we exercise
our plenary power under G.L. c. 278, § 33E, either to order a new trial or to
reduce his conviction to murder in the second degree. For the reasons set forth below, we affirm
the convictions, and decline to exercise our power under § 33E.
Facts. We set forth the facts in the
light most favorable to the Commonwealth, reserving certain details for
discussion in conjunction with certain issues raised.
At this
point, the defendant received Miranda
warnings both orally and by a card which he signed. In the hours that followed, the defendant
gave police a second and then a third written statement regarding his
involvement in the shooting. In the
second, he claimed that, while he was in the restaurant's restroom, the victim
and a man with whom she had been "flirting" left with the defendant's
automobile. In the third, the defendant
stated that he saw the victim leaving the restaurant with the man, followed
them to the automobile, and got into an altercation with the man which ended
when the man fired a handgun at the defendant and then drove off with the
victim. Soon after giving this
statement, the defendant was arrested.
The next morning, after learning that the police had gathered evidence
identifying him as the shooter, the defendant made a fourth written statement,
contending that he shot the victim accidentally during an argument.
[1][2][3] [426 Mass. 155] 1. The peremptory
challenge. The defendant first
contends that the judge erred in allowing the Commonwealth's
peremptory challenge of the only black member of the venire. We disagree.
Peremptory challenges are presumptively proper. Commonwealth v. Burnett,
418 Mass. 769, 770, 642 N.E.2d 294 (1994).
To rebut this presumption, a moving party must show that: "(1) a pattern of conduct has developed
whereby prospective jurors who have been challenged peremptorily are members of
a discrete group; and (2) there is a
likelihood that they are being excluded from the jury solely on the basis of
their group membership." Id. See Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert.
denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). A moving party may successfully do so even
where only a single juror has been challenged. Commonwealth v. Fryar, 414
Mass. 732, 737, 610 N.E.2d 903 (1993),
S.C., 425 Mass. 237, 680 N.E.2d 901 (1997).
Once the moving party makes this initial showing, the burden shifts to
the challenging party to provide a "group‑neutral reason" for
the challenge. Commonwealth v. Burnett, supra at 741,
632 N.E.2d 1206. This reason need not
be as specific as that required to justify a removal for cause, but general
assertions are insufficient. Commonwealth v. Soares, supra at 491, 387
N.E.2d 499. Rather, the challenging
party "must give a 'clear and reasonably specific' explanation of his 'legitimate
reasons' for exercising the challenges." Commonwealth v. Burnett, supra,
quoting Batson v. Kentucky, 476 U.S.
79, 98 n. 20, 106 S.Ct. 1712, 1724 n. 20, 90 L.Ed.2d 69 (1986). These reasons must be "personal to the
juror and not based on the juror's group affiliation." Commonwealth v. Young, 401
Mass. 390, 401, 517 N.E.2d 130 (1987).
Although
the judge gave no indication that the requirements had been met, he tacitly did
so by requiring the Commonwealth to provide a group‑neutral reason for
the exclusion of the black member of the venire. The Commonwealth did so, citing the admission
of the member of the venire that he had a prior "domestic
arrest." The stated reason was a
specific reference to the member of the venire personally and not to his racial
group. Moreover, given the fact that the
defendant was charged with the most extreme form of domestic abuse, the judge
was warranted in ruling this reason to be legitimate. Accordingly, there was no error.
[4][5][6]
2. The defendant's statements to police. The motion judge suppressed the defendant's
first statement because she found that the defendant was in custody and Miranda warnings were not given. The defendant claims that this irreparably
tainted his three later statements. Such
taint, he contends, required their [426
Mass. 156] suppression as well. Statements made following the violation of a
suspect's Miranda rights are
presumptively tainted and, thus, inadmissible.
(FN2) Commonwealth v. Smith, 412 Mass. 823, 836‑837,
593 N.E.2d 1288 (1992). Absent
circumstances requiring it to show both, see
Westover v. United States, 384 U.S. 436, 494‑497, 86 S.Ct. 1602, 1638‑1640,
16 L.Ed.2d 694 (1966), the Commonwealth may overcome this presumption by
showing that either: "(1) after the
illegally obtained statement, there was a break in the stream of events that
sufficiently insulated the post‑Miranda
statement from the tainted one; or (2)
the illegally obtained statement did not incriminate the defendant, or, as it
is more colloquially put, the cat was not out of the bag."
Commonwealth v. Osachuk, 418 Mass. 229, 235, 635 N.E.2d 1192 (1994).
In the
case at bar, the defendant's first statement was sufficiently not inculpatory
to permit admission of the later statements.
In it, the defendant claimed that he had neither seen nor heard from the
victim since she left home with his automobile the previous evening. Only after receiving Miranda warnings did the defendant ultimately admit that he
accompanied the victim to a local restaurant and shot her accidentally during
an argument in the automobile. His
initial statement did not place him at the scene of the crime, nor did it link
him with the victim close to the time of the shooting. See
Commonwealth v. Damiano, 422 Mass. 10, 13, 660 N.E.2d 660 (1996);
Commonwealth v. Osachuk, supra at 236, 635 N.E.2d 1192. Moreover, the fact that the police had no
evidence contradicting the initial statement when it was made negates the
possibility that it was inculpatory because it evidenced
consciousness of guilt. Commonwealth v. Smith, supra at 834, 835,
593 N.E.2d 1288. Finally, it is readily
apparent that the latter statements were "substantially different from,
and even contradictory to, the original statements." Commonwealth v. Osachuk, supra
at 237, 635 N.E.2d 1192, quoting
Commonwealth v. Watkins, 375 Mass. 472, 482, 379 N.E.2d 1040 (1978). Consequently, the judge did not err in
admitting the latter statements.
3. Waiver and voluntariness. The defendant next claims that the admission
of his latter statements was erroneous because:
(a) the police improperly reinterrogated him after he invoked his right
to counsel; and (b) the defendant's
later waiver of his right to counsel was involuntary.
[7] (a) Improper reinterrogation. Edwards v. Arizona, 451 U.S. 477, 485,
101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), requires that, once a suspect
invokes his right [426 Mass. 157] to counsel, police interrogation must
cease immediately, unless the suspect "initiates further communication,
exchanges, or conversations with the police." Where the suspect does so, reinterrogation
may follow, but "the burden remains upon the prosecution to show that
subsequent events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation." Oregon v. Bradshaw, 462
U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983). Thus, before police may recommence
interrogation in these circumstances, they must first obtain from the suspect a
voluntary, knowing, and intelligent waiver.
[8][9] In
the present case, the defendant claims that, prior to obtaining such a waiver,
Inspector Guilfoyle recommenced interrogation by asking him why he wanted an
attorney. Interrogation refers to
"any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect."
Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689‑1690,
64 L.Ed.2d 297 (1980). See Commonwealth v. Brant, 380 Mass. 876,
883, 406 N.E.2d 1021 (1980). It
"must reflect a measure of compulsion above and beyond that inherent in
custody itself." Rhode Island v. Innis, supra at 300, 100
S.Ct. at 1689.
The
evidence supports the motion judge's conclusion that no such compulsion
existed. Throughout the morning of his
custody, the defendant spoke freely with the police. Only as the police attempted to test his hands
for blood and gunshot residue did the defendant request an attorney. At this point all questioning ceased, and the
technician left the room. Shortly
thereafter Trooper Connolly reentered the room but said nothing. The defendant then initiated further
conversation by stating, "I admit it
" (emphasis added). Connolly
replied, "What?," and the defendant said that he had been at the La
Lune Restaurant with his wife. When
Inspector Guilfoyle reentered the room, Connolly asked the defendant to repeat
what he had said, and he complied. Thus
Guilfoyle's asking why he wanted an attorney in these circumstances was no more
than a request for a clarification of the inconsistency between his earlier
request and his subsequent initiation of conversation with Trooper
Connolly. That this is precisely how the
defendant interpreted the question is indicated by his response that he wanted
an attorney "to witness the testing of his hands." In our view, the question was neither
designed, nor reasonably likely, to elicit an incriminating response.
Rhode Island v. Innis, supra at 301, 100 S.Ct. at 1689‑1690. Rather, it was [426 Mass. 158] a
response to the defendant's ambiguously invoking his right to counsel and then
initiating further conversation with the statement, "I admit
it." See Commonwealth v. Torres, 424 Mass. 792, 798, 678 N.E.2d 847 (1997)
(holding police officer's comments were not interrogation because they were not
"anything other than a response to the defendant's concerns");
Commonwealth v. Diaz, 422 Mass. 269, 271, 661 N.E.2d 1326 (1996)
(concluding detective's question, "Why?," after defendant volunteered
incriminating statement was not interrogation because it was "a natural
reflex action ... that was invited by the defendant's first
statement"). (FN3) We caution, however, that, in ordinary
circumstances, there would be no proper basis for an interrogator's asking a
suspect his reason for requesting an attorney.
In this particular context, however, the detective's question was not
prejudicial.
[10][11]
(b) Voluntariness of waiver. "The Commonwealth bears the burden of
proving the validity of a Miranda
waiver beyond a reasonable doubt." Commonwealth v. Edwards, 420 Mass. 666,
669, 651 N.E.2d 398 (1995). "To be
valid the waiver must be made voluntarily, knowingly, and intelligently." Id.
at 670, 651 N.E.2d 398. "In
determining whether a waiver was made voluntarily, the court must examine the
totality of the circumstances surrounding the making of the waiver." Id.
[12][13]
The defendant relies on his status as a "high school drop‑out"
and his limited ability to understand English as supporting his claim that he
lacked sufficient intelligence to make a valid waiver. While "[i]lliteracy and low intelligence
are factors in examining the totality of the circumstances leading to a
waiver," Commonwealth v. Taylor,
398 Mass. 725, 728, 500 N.E.2d 799 (1986), a "mentally deficient adult may
make an effective waiver." Commonwealth v. Cameron, 385 Mass. 660,
665, 433 N.E.2d 878 (1982). Here, the
defendant signed a Miranda card, and
later acknowledged in writing that his statements were made voluntarily. We have previously held that findings that a
defendant either signed a Miranda
card or indicated that he understood his rights and willingly spoke are enough
to support the conclusion of a valid waiver of Miranda rights. Commonwealth v. Cook, 419 Mass. 192, 201,
644 N.E.2d 203 (1994). See Commonwealth v. Cameron, 385 Mass. 660,
665, 433 N.E.2d 878 (1982) (concluding defendant was sufficiently intelligent
based on fact that police "asked the defendant if he understood the rights
and received affirmative answers"). [426 Mass. 159] Furthermore, the judge's finding that the defendant understood
English was amply supported by the educational level he had attained and
"from the suspect's outward behavior, most notably his indication that he
understands his rights, waives them, and wishes to talk."
Commonwealth v. Garcia, 379 Mass. 422, 430, 399 N.E.2d 460 (1980).
[14] 4. Destruction of potentially exculpatory
evidence. To support his contention
that the Commonwealth deprived him of exculpatory evidence, the defendant
claims he called the Lowell police department the evening of the shooting and
that an audiotape of the alleged conversation made by the police may have
bolstered his claim that he was intoxicated, and thus incapable of killing with
deliberate premeditation. The police,
however, were unable to produce the tape from that evening because, by the time
of the defendant's request, it had already been "recorded over."
[15][16]
When potentially exculpatory evidence is lost or destroyed, the court must
"weigh the culpability of the Commonwealth, the materiality of the
evidence, and the potential prejudice to the defendant."
Commonwealth v. Willie, 400 Mass. 427, 432, 510 N.E.2d 258
(1987). With respect to potential prejudice,
the defendant must, at the very least, "establish a 'reasonable
possibility, based on concrete evidence rather than a fertile imagination,'
that access to the [material] would have produced evidence favorable to his
cause." Id. at 433, 510 N.E.2d 258, quoting Commonwealth v. Neal, 392 Mass. 1, 12,
464 N.E.2d 1356 (1984). Here, the
defendant failed to meet that burden.
Aside from the defendant's statements to the police, there was no
evidence that such a conversation took place.
Independent proof of the defendant's intoxication was similarly lacking
at trial. Thus the defendant failed to
establish a "reasonable possibility" that, even if the conversation
had taken place, the recording would have supplied evidence favorable to him.
Commonwealth v. Gabbidon, 17 Mass.App.Ct. 525, 535‑536, 459
N.E.2d 1263 (1984) (refusing to grant relief where defendant made no showing
that he was prejudiced by loss of evidence). Moreover, where the request for the tape was
not made until the trial had begun, the defendant has not shown that the police
acted in bad faith in destroying the tape.
See Commonwealth v. Charles,
397 Mass. 1, 14, 489 N.E.2d 679 (1986) (holding no reversal required where
exculpatory nature of tape was "mere conjecture," and where Commonwealth's
loss of tape recording was neither intentional or in bad faith).
[17] 5. Failure to give intoxication instruction. The defendant also [426 Mass. 160] claims
that the judge erred in declining to instruct the jury regarding
intoxication. (FN4) Where evidence of intoxication is lacking,
failure to instruct is not error. Commonwealth v. Gil, 393 Mass. 204, 221,
471 N.E.2d 30 (1984). At trial, the
defendant could at best show only that he drank one beer on the night of the
shooting.
Commonwealth v. Doucette, 391 Mass. 443, 455‑456, 462 N.E.2d
1084 (1984) (holding no instruction was required where evidence revealed that
defendant had "consumed a few drinks and three beers throughout the course
of the entire day," and others found his behavior normal). Given the defendant's lack of evidence on the
issue no instruction on intoxication was required. Commonwealth v. Gil, supra.
[18][19]
6. Admission of protective orders. The judge allowed evidence that the victim
had twice obtained protective orders against the defendant. The defendant claims this evidence was unduly
prejudicial because the protective orders were too remote in time from the
killing and, alternatively, because the relationship between the defendant and
the victim had improved in the interim.
Evidence of a hostile relationship, including protective orders obtained
by a victim against a defendant, may be admitted as relevant to the status of
the relationship and to the defendant's motive to kill. See
Commonwealth v. Hunter, 416 Mass. 831, 837, 626 N.E.2d 873 (1994);
Commonwealth v. Gil, supra at 215‑216, 471 N.E.2d 30. Here, the first protective order was issued
four months prior to the killing, a shorter period than that in cases where
protective orders have been held to be properly admitted. See
Commonwealth v. Nardone, 406 Mass. 123, 128, 546 N.E.2d 359 (1989) (two
years);
Commonwealth v. Gil, supra at 217, 471 N.E.2d 30 (seven
months). Moreover, the claimed
"improvement" in the relationship appears to consist only of the defendant's
promises, made only days before the killing, to change his behavior. Consequently, the judge did not abuse his
discretion in admitting the protective orders.
7. General Laws c. 278, § 33E, review. We decline to exercise our plenary power
under G.L. c. 278, § 33E, to order a new trial or enter a verdict of a lesser
degree of guilt.
Judgments affirmed.
[426 Mass. 161] IRELAND, Justice (dissenting).
In my
opinion, it was simply wrong for the police to ask the defendant why he wanted
an attorney. I do not think it should
ever matter why a defendant wants an attorney, and I do not think that Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), gives the police the latitude to
"clarify," see ante at 1022‑1023,
a defendant's request for an attorney.
To conclude as the majority does that it is sometimes acceptable to ask
a defendant why he or she wants an attorney (i.e., when a defendant engages in
"ambiguous conduct," ante
at 1022‑1023) suggests that, depending on the answer to the question, the
police can then decide whether to honor the request. I do not think that is the way Miranda works. As this court said in Commonwealth v. Rainwater, 425 Mass. 540, 544 n. 2, 681 N.E.2d
1218 (1997), "[P]olice officers have no business giving what an
unsophisticated person might consider advice that he does not need to have a
lawyer. They must remain entirely
neutral on the subject." In this
case, given the fact that the defendant specifically had asked for an attorney,
the police did not "remain entirely neutral" when they asked the
defendant why he wanted an attorney.
Miranda concluded that the privilege
under the Fifth Amendment to the United States Constitution was so fundamental
as
to warrant an absolute rule,
rather than case‑by‑case treatment.
(FN1) Miranda does not provide for
qualifications on the accused's request for an attorney. I believe that questioning the accused why he
wants an attorney should not be allowed under any circumstances. As
Miranda notes, the assessment of facts and circumstances in an individual
case including, for example, the age, education, or intelligence of the accused
"can never be more than speculation." Id. at 469, 86 S.Ct. at
1625. An absolute rule is
"clearcut." Id. at 469, 86 S.Ct. at 1625. Here, an absolute rule would prevent the
admission of inherently unreliable statements and deter police from using a
potentially oppressive and abusive tactic.
Even if we
were to take the alternative approach of considering the particular facts and
circumstances of the case (such as the defendant's age, education, ability to
comprehend English, and experience with police procedures), I firmly believe
that the [426 Mass. 162] defendant reasonably could have
believed that his right to speak with an attorney depended on his giving the
appearance that he was cooperating with the police. I also believe that the defendant reasonably
could have maintained that belief through all subsequent interrogations,
regardless how many times he received new
Miranda warnings. Given the
reasonableness of the defendant's belief, the Commonwealth has not met its
burden of proving beyond a reasonable doubt that the defendant's statements
were voluntary. 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).
The facts
here indicate that the defendant was a high school drop‑out and that
English was his second language. He
stated (and the Commonwealth did not dispute) that when he is nervous, his
comprehension of English is impaired.
The facts further indicate that at some point, the defendant was advised
of his Miranda rights, that he asked
for an attorney, that all questioning ceased immediately, and that shortly
thereafter the defendant initiated a conversation with the police. To this point, the police activities appear
permissible. The record then indicates
that the police asked the defendant why he wanted a lawyer. At that point, the police activities became
impermissible‑‑either under the absolute rule that I advocate, or
under the unique facts and circumstances presented.
I believe
that all statements made by the defendant after he was asked why he wanted an
attorney should be suppressed.
Correspondingly, all evidence obtained from search warrants that were
issued on the basis of those statements also should be suppressed. Accordingly, I would grant the defendant a
new trial.
(FN1.) The defendant also was convicted of the
unlawful possession of a firearm and ammunition.
(FN2.)
The defendant makes no separate argument based on the Massachusetts
Constitution.
(FN3.)
The dissent relies on speculation and facts not found by the judge to support
the conclusion that the defendant's statements were not voluntary.
(FN4.)
Specifically, the defendant claims that the judge should have informed the jury
that the defendant's intoxication may negate the possibility that he acted with
deliberate premeditation.
(FN1.)
"[W]e will not pause to inquire in individual cases whether the defendant
was aware of his rights without a warning being given.... [W]hatever the background of the person
interrogated, a warning at the time of the interrogation is indispensable to
overcome its pressures and to insure that the individual knows he is free to
exercise the privilege at that point in time." Miranda v. Arizona, 384
U.S. 436, 468‑69, 86 S.Ct. 1602, 1624‑1625, 16 L.Ed.2d 694 (1966).