|
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. Parham, 390
Supreme Judicial Court of Massachusetts,
Argued
Decided
[390
David B. Mark, Asst. Dist. Atty., for Com.
Before [390
NOLAN, Justice.
In
November, 1975, Neil Parham was tried before a jury and found guilty of murder
in the first degree, armed robbery, and armed assault with intent to rob. Parham's convictions were the result of
indictments stemming from a slaying on
Parham
received a mandatory sentence of life imprisonment on the murder charge, with
concurrent terms of seven to ten years on the other charges, on
Parham
asserts that the following errors require reversal of his convictions: (1) the admission in evidence of his
confession absent a showing by the Commonwealth of a voluntary, knowing, and
intelligent waiver of rights secured to him by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), and absent a showing that the confession was voluntarily given; (2) the trial judge's failure to instruct the
jury, in accordance with Massachusetts' "humane practice", concerning
the issue of the voluntariness of the confession; (3) the failure to [390 Mass. 835]
suppress the defendant's confession as the fruit of illegally obtained
evidence; (4) ineffective assistance of
counsel by reason of the failure of trial counsel to file a claim of appeal
from the first degree murder conviction;
and (5) the omission from the jury charge of an instruction that a
verdict of guilty of felony‑murder based on armed robbery could only be
made if the jury found the defendant had knowledge that a coparticipant was in
possession of a dangerous weapon. In
addition, Parham requests that this court direct the entry of a verdict of a
lesser degree of guilt pursuant to G.L. c. 278, § 33E.
[1] Of the
issues enumerated above, only the first, relating to Miranda standards and voluntary confessions, is founded upon
exceptions saved at trial. (FN2) Review of all other matters which Parham
raises for the first time on appeal, is limited to a determination whether the
alleged errors created a substantial risk of a miscarriage of justice.
Commonwealth v. Atkins, 386
For the
reasons stated below, we conclude that there was no error as to the Miranda and voluntariness issues, nor
does this case present an appropriate occasion for the exercise of our powers
under G.L. c. 278, § 33E.
1. Preliminary events. The record reveals the following sequence of
events leading to Parham's arrest. On a
Sunday afternoon, in February, 1975, Boston Police Detective Francis J.
McCarthy noticed Parham on a Roxbury street carrying a canvas bag with an
object protruding from it. Detective
McCarthy stopped Parham, identified himself as a police officer, and recognized
the object as a "dent puller."
He asked Parham to accompany him to the police station because McCarthy
was not certain that the dent puller was a burglarious implement. Parham accepted McCarthy's invitation.
[390 Mass. 836] In the police cruiser on the way to the police station, Parham
gave Detective McCarthy his brother's name.
McCarthy, who was familiar with Parham's family, then realized who
Parham actually was, and that there existed an outstanding murder warrant for
his arrest. He so informed Parham, who
was also aware of the warrant and of the police visits to his mother's home in
connection with the murder warrant.
Detective
McCarthy placed Parham under arrest for murder as soon as the vehicle stopped
outside the police station. Parham surrendered
a gun which he had been carrying.
McCarthy attempted to recite
Miranda warnings, but was interrupted several times by Parham, who begged McCarthy for a "break" and told
McCarthy he had tried to reach him concerning the murder warrant, but had been
unable to do so.
Once
inside the station, McCarthy recited the
Miranda rights in full, and asked Parham if he would be willing to speak to
Detective Peter J. O'Malley, who was also investigating the Sunnyside Street
murder. Parham agreed to do so. Detective O'Malley interviewed Parham, at some
point showing him some papers connected with the investigation. There is some conflict in the record as to
whether Parham was shown only the warrant for his arrest or another defendant's
statement, and this will be discussed later.
Parham
agreed to permit a tape recording of his version of the incident on Sunnyside
Street. Detective O'Malley repeated Miranda warnings at least once and
possibly twice, before and at the outset of the taping. Detective O'Malley told Parham that an
attorney from the Roxbury Defenders Committee would be available to him for
counselling that day if he so desired, and that when he was arraigned, the
court would appoint a "good lawyer," one with "at least ten years'
experience." At some point prior to taping, Parham
requested that he be allowed to telephone his sister. Her line was then busy but the call was
placed later and Parham spoke to his sister subsequent to the tape recording.
[390 Mass. 837] The second side of the tape never recorded, probably due to a
mechanical failure. The first side of
the tape was played at trial. Parham's
statement reveals his companions' design to steal an automobile, their plan to
follow the taxicab to steal the driver's money, and the incident on Sunnyside
Street. Parham's version of the events,
if believed, reflected knowledge of the plan, his recalcitrant participation,
knowledge that his friends carried pocket knives, and a reluctance on Parham's
part to venture beyond the stolen vehicle to the area where the stabbing and
robbery occurred. Parham admitted to
waiting for one of the participants until he ran back to the car and then they
both sped away.
2. The suppression hearing. Parham alleges error in the trial judge's
refusal to suppress his statement on the theory that there was no valid waiver
of his Miranda rights and that the
confession cannot, considering the totality of the circumstances, be considered
voluntary. Parham asserts that he was
"herbed up" (intoxicated by marihuana), and thus unable to make a
meaningful and intelligent waiver of his
Miranda rights. He avers that the
police reference to a "good lawyer" to be appointed at arraignment
led him to believe an attorney from the Roxbury Defenders Committee could not
adequately assist him in the police station.
He states that he was denied access to the telephone until making his
statement. Further, Parham contends
that, owing to the inherently coercive atmosphere of the police station, his
lack of education, and the presence of four police officers during questioning,
the trial judge erred in concluding that he made a knowing and intelligent
waiver of Miranda warnings. Alternatively, but on the same alleged
factual basis, Parham asserts that his confession was not a free and voluntary
act.
[2] The
trial judge made no findings of fact in denying Parham's motion to
suppress. Although they would have
proved helpful, their omission is not fatal, for his conclusion is reviewable
as a matter of law. Although it would
have been prudent for the judge to make findings of fact, we think [390 Mass. 838] that the judge's decision to admit the defendant's statements
renders the judge's conclusions as to voluntariness "clearly evident from
the record." Commonwealth v. Brady, 380 Mass. 44, 52,
410 N.E.2d 695 (1980), quoting Jackson v.
Denno, 378 U.S. 368, 378‑379, 84 S.Ct. 1774, 1781‑1782, 12
L.Ed.2d 908 (1964).
[3][4][5][6]
In reviewing Parham's contentions, we are aware that two separate questions are
before us: first, whether the Miranda requirements have been
scrupulously met, and a knowing and intelligent waiver of them made; and second, whether in the totality of the
circumstances, apart from formal compliance with Miranda, the confession given was the product of a free will,
and not the result of coercion or intimidation. Commonwealth v. Williams,
388 Mass. 846, 851, n. 2, 448 N.E.2d 1114 (1983). The Commonwealth bears a heavy burden of
demonstrating voluntariness, evidence of which must affirmatively appear from
the record. (FN3) Every reasonable presumption against
voluntariness will be indulged. Johnson v. Zerbst, 304 U.S. 458, 464, 58
S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Commonwealth v. Hosey, 368 Mass. 571,
577, 334 N.E.2d 44 (1975). Where the
defendant claims to have been under the influence of drugs, special care must
be taken in assessing the voluntariness issue, although intoxication alone is
not sufficient to negate an otherwise voluntary act. Commonwealth v. Hooks, 375
Mass. 284, 289, 376 N.E.2d 857 (1978).
[7][8]
Testimony at the suppression hearing tended to show the following facts
surrounding Parham's confession. First,
and significantly, Parham was well aware at the time of his arrest of the
existence of the murder warrant.
Secondly, the testimony of both police officers, at least one of whom
had extensive drug enforcement experience, indicated that [390 Mass. 839] Parham
did not appear to be under the influence of drugs. They made inquiry concerning his use of
narcotics and did not observe signs of intoxication or illness. During the interrogation, Parham made no
mention of smoking marihuana. It was
only at the suppression hearing that Parham asserted that the influence of
marihuana precluded a knowing and intelligent waiver of his rights. Ordinarily, the police are entitled to rely
on a suspect's outward behavior and assurances of sobriety and
understanding. See Commonwealth v. Garcia, 379 Mass. 422, 430, 399 N.E.2d 460
(1980). Without evidence of any
perceptible manifestation of intoxication, and with evidence that the police
made diligent inquiry concerning drugs, we cannot say that there was any error
in the trial judge's believing, as he must have, that Parham's self‑induced
intoxication did not preclude a knowing and intelligent waiver of his rights.
Commonwealth v. Hooks, supra 375 Mass. at 289‑290, 376 N.E.2d
857. Additionally, despite Parham's
limited education, which terminated at the tenth grade, nothing in the record
suggests that Parham lacked the intellectual capacity to comprehend his
situation. Commonwealth v. Williams, supra 388 Mass.
at 852, 448 N.E.2d 1114. Commonwealth v. Daniels, 366 Mass. 601,
607, 321 N.E.2d 822 (1975).
[9] In
addition, there is no evidence in the record which supports Parham's allegation
that he was denied use of the telephone until he made his statement. To the contrary, police attempted to reach
his sister, but the line was busy.
Thereafter, they assured Parham that another attempt to reach her would
be made, and this was in fact accomplished.
This evidence does not suggest the kind of intentional interference
which would render the defendant's statements inadmissible. See
Commonwealth v. Jones, 362 Mass. 497, 503, 287 N.E.2d 599 (1972).
[10] There
was evidence tending to show that the arresting and interrogating officers
recited Miranda warnings on at least
two occasions, although Parham's memory of such recital, and his indication
that he understood those warnings, appeared dim at the suppression
hearing. The trial judge was free to
disbelieve Parham's statements, particularly because[390 Mass. 840] he testified to some recollection of mention
of rights, and we will not disturb this implicit finding on appeal. Strict compliance with formal Miranda warnings coupled with the evidence of Parham's knowledge of the
existence of the warrant, permits the conclusion that rather than prolong the
agony of the criminal investigation, Parham chose to waive his constitutional
rights.
[11]
Further, police remarks concerning the availability of an attorney from Roxbury
Defenders Committee followed by the appointment of an attorney at arraignment,
cannot fairly be said to have been in denigration of Parham's right to counsel.
We find no
error in the trial court's conclusion that Parham knowingly and intelligently
waived his Miranda rights, and that
police scrupulously respected those rights.
Under all the circumstances, the prophylactic purpose of the Fifth
Amendment's exclusionary rule‑‑to discourage coercive or improper
police conduct‑‑has been met. Commonwealth v. Garcia, supra 379 Mass.
at 430, 399 N.E.2d 460.
[12] The
next issue is whether the confession itself was a free and voluntary act. This inquiry focuses on no particular set of
facts, but leads us to consider whether, under the totality of relevant
circumstances, the confession was the product of physical or psychological
coercion, or that it can be said that the confession was a free and voluntary
act, and not the product of coercion. Commonwealth v. Mahnke, 368 Mass. 662,
679‑680, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct.
1740, 48 L.Ed.2d 204 (1976).
[13][14]
Although we have recognized an inherently coercive element within the police
station setting, that alone is not enough to support a finding of involuntariness.
Commonwealth v. Bookman, 386 Mass. 657, 660‑661, 436 N.E.2d
1228 (1982). Here, although Parham was
interrogated in the hectic milieu of the police station, nothing suggests the
kind of brutality which we have previously found reprehensible. See
Commonwealth v. Harris, 371 Mass. 462, 466‑467, 358 N.E.2d 982
(1976). Testimony at the suppression
hearing indicated that Parham was asked whether he would speak to the
investigating detective about the Sunnyside Street murder, that there were
thorough [390 Mass. 841] and careful explanations by the
police of what they were concerned about, and that Parham was asked whether he
objected to taping the statement. The
only conflicting evidence was Parham's testimony that the police yelled at
him. Given the fact that Parham
admitted, albeit grudgingly, that he cooperated with the police, and without
further evidence of coercion or intimidation, the record supports the
conclusion that Parham's statement was voluntary. There being no error in the trial judge's implicit
determination of voluntariness at the suppression hearing, there was also no
error in permitting testimony at trial to establish the voluntariness of
Parham's statements.
[15][16][17][18][19]
3. Failure to instruct the jury on
voluntariness. Under Massachusetts'
"humane practice," a trial judge, having made an initial
determination concerning the voluntariness of a confession, must instruct the
jury to pass on the voluntariness of the confession if voluntariness is a live
issue at trial. Commonwealth v. Alicea, 376 Mass. 506,
523, 381 N.E.2d 144 (1978). The initial
judicial determination of voluntariness is required by the United States
Constitution. Jackson v. Denno, 378 U.S. 368, 84 S.Ct.
1774, 12 L.Ed.2d 908 (1964). Although
determination by the jury is not constitutionally required, it is a matter of
longstanding practice in Massachusetts. Commonwealth v. Cole, 380 Mass. 30, 40,
402 N.E.2d 55 (1980). Generally,
submission of the voluntariness issue to the jury must be the subject matter of
an objection, exception, or request for instruction in the absence of
conflicting testimony concerning voluntariness.
If there is evidence on the issue, there is an obligation on the judge sua sponte to submit the issue to the
jury on appropriate instructions. See Commonwealth v. Cole, supra at 41, 402
N.E.2d 55; Commonwealth v. Chung, 378 Mass. 451, 458
n. 8, 392 N.E.2d 1015 (1979). In the
absence of an objection, exception, or request for instruction, review of
failure to submit the voluntariness issue is confined to a determination
whether, under G.L. c. 278, § 33E, there has been a showing of "grave prejudice
or substantial likelihood that a miscarriage of justice has occurred."
Commonwealth v. Brady, 380 Mass. 44, 54, 410 N.E.2d 695 (1980).
[390 Mass. 842] [20] The present case, involving no substantial testimony on the
issue of voluntariness or intoxication, fails to support a determination of
grave prejudice or a miscarriage of justice.
Parham's trial counsel in final argument made only fleeting reference to
this issue. He made no reference to
voluntariness per se, but only in connection with assessing the police
officers' credibility. Trial counsel
also made reference to the police's obligation to inquire about drug use while
interrogating Parham, and to comply with
Miranda. Nevertheless, those
references are not sufficient to indicate to the judge that his attention ought
to be directed to passing on the voluntariness question. The references to voluntariness were not
sufficiently focused so to make the question a "live issue." See
Commonwealth v. Tavares, 385 Mass. 140, 150, 430 N.E.2d 1198 (1982).
4. Failure to suppress the confession as the
"fruit" of an illegally obtained confession. Parham asserts that his confession should be
suppressed as the product of the illegally obtained and subsequently suppressed
statement of Lawrence Taylor, who was also charged in connection with the
Sunnyside Street slaying. Commonwealth v. Taylor, 374 Mass. 426,
374 N.E.2d 81 (1978). Specifically,
Parham argues that he was shown the Taylor statement during the time that he
was in custody, and that it was not until he saw the statement that he decided
to confess.
[21] The
test of the admissibility of a confession which is the fruit of an earlier
illegality, announced in Wong Sun v.
United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is
"whether, granting establishment of the primary illegality, the evidence
to which instant objection is made has been come at by exploitation of that illegality
or instead by means sufficiently distinguishable to be purged of the primary
taint." Id. at 488, 83 S.Ct. at 417, quoting
Maguire, Evidence of Guilt, 221 (1959).
We recently addressed this issue and said that a determination of
voluntariness sufficient to purge the primary taint must be resolved in light
of (1) the presence or absence of Miranda
warnings; (2) the temporal proximity of
arrest and confession; (3) the presence
of intervening circumstances; and [390 Mass. 843] (4) the purpose and flagrancy of official misconduct.
Commonwealth v. Bradshaw, 385 Mass. 244, 258, 431 N.E.2d 880 (1982).
[22] Here
the evidence was sufficient to support a finding that the primary taint, if
any, had been purged, though we deprecate again the absence of written
findings. First of all, it is arguable
whether the Taylor statement was used in obtaining Parham's statement. Parham alleges that he saw certain
investigative papers concerning Sunnyside Street, but merely
"guessed" that he saw Taylor's statement. The police testified that Parham was not
shown Taylor's statement, but rather Parham's own arrest warrant. During the taping of Parham's confession,
only a passing reference was made to any statement given by another involved in
the incident, and this was done in such fashion as to indicate that the police
had not laid the Taylor statement before Parham or made other use of it. The police testified that Parham referred to
Taylor and another suspect at the close of the interview, not before or during
it. There is some indication that Parham
had been independently implicated by Taylor's girl friend, apart from Taylor's
statement. In short, the record does not
indicate that Parham's statement was the result of exploitation of the Taylor
statement.
As to the
other factors, we have already noted compliance with Miranda, although that alone would not cure any taint.
Commonwealth v. Bradshaw, supra at 258, 431 N.E.2d 880. However, notwithstanding that Parham
confessed shortly after his arrest, he was not denied time in which to consider
his decision to speak with police.
Parham's knowledge of the existence of a warrant for his arrest may have
motivated him to confess rather than engage in a
protracted game of cat and mouse with the police. There was testimony from Detective McCarthy
that Parham had said, "I want to give myself up" and, "I'm tired
of running." Additionally, some
two months had passed between the giving of the Taylor statement and Parham's
confession. Finally, the police conduct
in question here can hardly be said to be "flagrant misconduct." The police could not have been aware at the
time Parham made his statement that the Taylor statement, [390 Mass. 844] if it
was utilized at all, would later be suppressed.
We have discussed on several occasions that the exclusion of evidence
purportedly resulting from illegally obtained evidence necessitates a balancing
of the deterrent purpose of the exclusionary rule and the public interest in
prosecuting crime, and have noted that where there is a truly voluntary
decision to testify, or, as in this case, to confess, that decision should not
be overridden unless extreme circumstances require suppression to deter further
resort to the unlawful conduct. Commonwealth v. Caso, 377 Mass. 236, 241,
385 N.E.2d 979 (1979), and cases cited.
Here, although the Taylor statement was later suppressed, given the
presence of all the above mentioned factors indicating Parham's willingness to
confess and equivocal evidence concerning use of the Taylor statement, we
cannot say that application of the exclusionary rule would have the slightest
effect on deterring police misconduct. Commonwealth v. Gallant, 381 Mass. 465,
470‑471, 410 N.E.2d 704 (1980).
[23] 5. Ineffective assistance of counsel. Parham asserts that his trial counsel's
failure to perfect his appeal left him "completely abandoned," that
such failure to file a timely appeal renders counsel's representation per se
incompetent, and that exhibits were lost through the incompetence of trial
counsel, thereby weakening Parham's ability to present an effective record for
appellate review. We disagree. The record does not support Parham's
assertion that trial counsel left him "completely abandoned" on
appeal. Rather, the record indicates
trial counsel's appellate strategy would focus on the "fruits of the
poisonous tree" theory discussed above, inasmuch as counsel's letter dated
March 2, 1978, to Parham states that since an appellate decision in favor of
Taylor had been rendered, the time to move forward with Parham's appeal had
arrived. It would have been desirable
for counsel to inform Parham at an earlier date and with greater clarity
concerning this strategy. We do not approve
of counsel's failure to file a timely appeal but we cannot say that counsel's
actions amount to "complete abandonment."
[390 Mass. 845] [24][25] Parham's assertion of per se incompetence does not
present the correct legal standard for review of effective assistance. Rather, that standard is whether counsel's
conduct falls "measurably below that which might be expected from an
ordinary fallible lawyer" and whether that conduct had caused prejudice by
depriving defendant of an otherwise available, substantial ground of defense.
Commonwealth v. Saferian, 366 Mass. 89, 96‑99, 315 N.E.2d 878
(1974). Here, we cannot say that
adopting a strategy of waiting to see what the outcome of Taylor's appeal would
be falls measurably below an ordinary fallible lawyer's conduct, nor, inasmuch
as we have reviewed the entire record at this time, did it cause defendant to
lose any ground of defense. Further,
failure to appeal on the voluntariness issue while awaiting a determination on
Taylor's appeal cannot be the basis for complaint, because the adoption of a
strategy which does not work "does not necessarily indicate error or
ineffective assistance of counsel." Commonwealth v. Brady, 380 Mass. 44, 58,
410 N.E.2d 695 (1980) (Abrams, J., concurring).
6. Error in jury instructions concerning
application of the felony‑murder rule. Parham asserts error in the trial judge's
failure to instruct the jury that a finding that Parham had knowledge that his
coparticipants were in possession of a dangerous weapon was a prerequisite to
application of the felony‑murder rule.
[26][27] Although the felony‑murder rule
has been much discussed since Parham's convictions (see Commonwealth v. Currie, 388 Mass. 776, 448 N.E.2d 740 [1983];
Commonwealth v. Watson, 388 Mass. 536, 447 N.E.2d 1182 [1983];
Commonwealth v. Moran, 387 Mass. 644, 442 N.E.2d 399 [1982];
Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400 [1982];
Commonwealth v. Walker, 17 Mass.App. 194, 457 N.E.2d 638 [1983] ),
these cases do not aid him. Watson comes closest to supporting the
defendant's position because we held there that failure to instruct the jury
that one participant in a robbery‑murder must be shown to have had
knowledge that the other participant had a weapon in order to convict the
weaponless participant of murder under the felony‑murder rule was error.
Commonwealth v. Watson, supra 388 Mass. at 544‑546, 447 N.E.2d
1182. In the [390 Mass. 846] instant
case, which was tried approximately seven and one half years before our
decision in Watson, the judge gave a
full and accurate charge on the criminal liability of joint participants. There was evidence in the form of an
admission that Parham knew that his companions in crime carried knives on this
occasion. We perceive no valid reason
for departing from our rule in Moran
as to retroactive application. Commonwealth v. Moran, supra 387 Mass. at
651 n. 3, 442 N.E.2d 399. Accordingly,
we limit the rule of Watson,
described above, to those cases on direct appeal or as to which time for direct
appeal had not expired at the time when
Watson was decided if the issue was preserved at trial. This issue was not preserved at trial, and
thus it is before us solely pursuant to § 33E.
We conclude that the instructions on joint venture do not create a substantial
risk of a miscarriage of justice.
[28] 7. Review under G.L. c. 278, § 33E. The entry of a verdict of a lesser degree of
guilt pursuant to our power under G.L. c. 278, § 33E, is not required. We have made a careful review of the record
and we are persuaded that the result reached at trial was consonant with
justice.
Judgments affirmed.
(FN1.) Only Parham's appeal is before us. Appeals concerning the other participants
have been disposed of. See Commonwealth v. Brown, 376 Mass. 156,
380 N.E.2d 113 (1978); Commonwealth v. Taylor, 374 Mass. 426,
374 N.E.2d 81 (1978).
(FN2.)
This case was tried before the Massachusetts Rules of Criminal Procedure became
effective. Under Rule 22, 378 Mass. 892
(1979), exceptions need no longer be taken.
However, a party is required to object or to make known to the court the
action which he wants taken. The
defendant failed to do so in this case except as to the questions of the waiver
of Miranda warnings and
voluntariness.
(FN3.)
Cf. 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). In Tavares, we established that the
Commonwealth must prove the voluntariness of a defendant's statement beyond a
reasonable doubt before submission to a jury.
That standard was imposed on the basis of Massachusetts' "humane
practice." As the result reached
in Tavares is not constitutionally
compelled, we decline to apply it retroactively. See
Commonwealth v. Day, 387 Mass. 915, 921 n. 10, 444 N.E.2d 384 (1983)
(reasonable doubt standard as to knowing and voluntary waiver of Miranda rights not retroactive).