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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. Parker, 402
Supreme Judicial Court of Massachusetts,
Argued
Decided
Kevin J. Reddington,
Thomas L. Largey, Quincy,
for David J. Parker.
Ann E. Rascati, Asst.
Dist. Atty., for Com.
Before [402
NOLAN, Justice.
The
defendants, brothers Wayne Parker and David Parker, appeal from their
convictions of murder in the first degree.
Also on appeal are
We recite
some of the facts that the jury could have found, leaving others for discussion
as specific issues arise.
The
defendants and the victim, Jose Gomes, on
[1] 1. Intoxication instructions. The judge erred in failing to charge the
jury, upon request, on the possible effects of intoxication on the ability to
form the specific intent required for the felony of unarmed robbery and the
lesser included offense of larceny from the person. We held in Commonwealth v. Henson, 394 Mass. 584,
593, 476 N.E.2d 947 (1985), that:
"It is time to announce that where proof of a crime requires proof
of a specific criminal intent and there is evidence tending to show that the
defendant was under the influence of alcohol or some other drug at the time of
the crime, the judge should instruct the jury, if requested, that they may
consider evidence of the defendant's intoxication at the time of the crime in
deciding [402 Mass. 336] whether the Commonwealth has proved
that specific intent beyond a reasonable doubt." The judge, apparently uncertain whether our
holding in Henson applied to unarmed
robbery cases, did not instruct the jury as to Henson principles. We must,
therefore, set aside the verdict of guilty of unarmed robbery against Wayne
Parker, and the verdict of guilty of larceny from the person against David
Parker.
[2] The
judge further erred by instructing the jury that "voluntary intoxication
has no effect upon a jury's determination or consideration of first degree
murder on the basis of felony murder. It
also has no effect upon joint enterprise factors." Defense counsel objected to this instruction
at the conclusion of the judge's charge.
As we explained above, voluntary intoxication can, indeed, be considered
by the jury as it affects a defendant's ability to form the specific intent
required for the underlying felony in a first degree murder case based on the
felony‑murder doctrine. It was
error for the judge to preclude the jury from considering the bearing, if any,
that either defendant's intoxicated condition had on his ability to form the
specific intent to steal.
[3] It was
also error for the judge to charge the jury not to consider either defendant's
intoxication as it may have affected his ability to form the shared intent required
to support a joint enterprise theory.
Although the judge provided extensive instructions on the necessary
elements of joint enterprise, in addition to an instruction that all the
evidence (including evidence of the defendants' intoxication) could be
considered by the jury in making its final determinations, we cannot ignore the
erroneous portion of the judge's charge.
"[T]he fact that some of the instructions were correct is not
determinative because 'we cannot know whether the jury were guided by the
correct or incorrect portion of the instruction.' " Commonwealth v. Nieves,
394 Mass. 355, 362, 476 N.E.2d 179 (1985), and cases cited. Commonwealth v. Mulica, 401 Mass. 812, 818, 420 N.E.2d 134 (1988). We need not decide whether a separate intoxication
instruction on the ability to form a shared intent is required when the
Commonwealth argues a joint enterprise theory at trial. To dispose of this case, we need only hold
that it was reversible error for [402
Mass. 337] the judge to instruct the
jury that voluntary intoxication could not be considered. See
Commonwealth v. Glass, 401 Mass. 799, 809‑810, 519 N.E.2d 1311 (1988); Commonwealth v. Tevenal, 401 Mass. 225, 230‑231, 515 N.E.2d 1191
(1987) (even though separate intoxication instructions are not required on
issue of defendant's conscious disregard for risk to human life, judge's charge
should not foreclose jury from considering evidence of defendant's voluntary
intoxication).
The jury
found the defendant, Wayne Parker, guilty of murder in the first degree on the
ground of felony‑murder and on the ground of deliberately premeditated
malice aforethought. The jury found
David Parker guilty of murder in the first degree on the single basis of
deliberately premeditated malice aforethought. Because the judge's erroneous charge clearly
tainted the conviction premised on felony‑murder, and because we cannot
determine whether the convictions based on deliberate premeditation were found
by the jury on a joint enterprise theory, the verdicts of murder in the first
degree against both Wayne and David must be set aside.
We next
consider the issues raised on appeal that are likely to arise at retrial.
2. Motions to suppress. The defendants each filed pretrial motions
to suppress oral and written statements given to the police. After hearings, the motions were denied. On appeal, the defendants contend that their
confessions were the product of illegal arrests and should not have been
admitted at trial. We disagree.
After
hearing evidence, the judge made the following findings of fact. On May 10, 1984, police officers obtained a
warrant authorizing a search of the premises where the defendants were known to
be residing. The police officers went to
the residence that evening and made a peaceful entry. They informed the defendants that they were
investigating Gomes's murder and had a warrant to search the premises. At this time, the defendants were read their
rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and they indicated that
they understood them.
[402 Mass. 338] Police officers then commenced a search of the residence. In accordance with routine procedure, the
officers requested that the defendants remain in one area of the home while the
search was being conducted. The
defendants complied with this request.
During this time, the officers made observations of the Parkers, and
concluded that they were not under the influence of alcohol or controlled
substances.
The
defendants were then asked if they would answer some questions concerning
Gomes's death at the Halifax police station.
Although informed that they were not under arrest, the defendants agreed
to be questioned at the station. To
ensure that no evidence would be concealed or destroyed, the officers
accompanied the Parkers to their rooms and watched them change into their
street clothes. The defendants were then
transported to the police station in separate vehicles. They were not handcuffed. Upon reaching the station, the police conducted
separate interviews with the defendants.
Prior to
questioning, both defendants were readvised of their
Miranda rights and provided with printed Miranda cards. After reading the cards and indicating that
they understood their rights, the defendants signed the cards. Both defendants agreed to answer questions
and subsequently each gave a statement in which they detailed the killing of
Jose Gomes. Both defendants were then arrested.
The
defendants next agreed individually to repeat their statements on
videotape. While waiting for the
videotape equipment to arrive, the defendants had doughnuts and coffee with the
police officers. At that time, the
defendants revealed that personal property of the victim was hidden in their
home, and they both signed consent forms authorizing a further search of their
home.
Before the
videotaping, the defendants were again advised of their Miranda rights. During the videotaping, the defendants
acknowledged that both their previous inculpatory
statements and the videotaped confessions were voluntary, made with full
understanding of their rights, and were not prompted by coercion or
inducements. Both defendants appeared
"alert, sober, relaxed and in full command of all [their]
senses" throughout the taping procedure.
[402 Mass. 339] The motion judge determined that the defendants were not under
arrest until each made a confession at the Halifax police station. The motion judge further found that the
defendants' statements made that evening followed a knowing and intelligent
waiver of their constitutional rights, and that the confessions were not the
result of police coercion or inducements of any kind. The conclusions were fully warranted.
[4] We
begin with the proposition that we accept a motion judge's subsidiary findings
of fact and give substantial deference to his ultimate conclusions, if they are
supported by the evidence. Commonwealth v. Meehan, 377 Mass. 552,
557, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980). Here, we uphold the judge's determinations
that the defendants were not under arrest at their home, and that the
defendants voluntarily accompanied the officers to the police station. These conclusions were amply supported by the
evidence.
While the
defendants were accompanied by officers at all times during the search of the
residence, the restraint was minimal and for the limited purpose of preventing
the destruction of evidence. In
addition, police officers explicitly informed the defendants that they were not
under arrest. At no time did the
officers display or use their weapons.
We have noted there is no arrest unless a reasonable person on the scene
would perceive that the defendants were being forcibly detained. Id.
at 559, 387 N.E.2d 527. On these facts,
a reasonable person could not conclude that the Parkers were under arrest in
their home. (FN2) It is also clear that the defendants
voluntarily accompanied the officers to the police station. (FN3)
[402 Mass. 340] The Commonwealth must prove, beyond a reasonable doubt, that the
defendants made a knowing and intelligent waiver of their rights before making
their statements to the police. Commonwealth v. Day, 387 Mass. 915, 920,
444 N.E.2d 384 (1983). During the
hearings on the defendants' motions, the Commonwealth introduced credible
evidence that the defendants: (1) were
repeatedly advised of their constitutional rights; (2) indicated an understanding of these
rights; and (3) voluntarily waived their
Miranda rights on the evening in question.
In addition, the Commonwealth presented the testimony of investigating
officers who observed the defendants during the execution of the search warrant
and the questioning at the police station.
These police officers expressed the opinion that the defendants were not
under the influence of alcohol or controlled substances. Based on this evidence and a personal viewing
of the videotapes, the judge concluded that there had been a valid waiver of
constitutional rights.
[5] There
was no error in the judge's conclusion that the Commonwealth met its burden of
proof in the instant case. The evidence
presented to the motion judge contradicted the defendants' assertions that they
were too tired and intoxicated to have knowingly and intelligently waived their
constitutional rights. The judge was
fully warranted in concluding that the defendants executed a valid waiver of
their Miranda rights. We therefore turn
to the related question whether the defendants' confessions were voluntary.
The
defendants contend that their statements were a product of an overborne and weakened
will. The defendants maintain that their
physical and emotional conditions were debilitated as a result of excessive
drinking during the few days prior to the interrogation. Accordingly, the defendants challenge the
motion judge's finding that they voluntarily confessed to the killing of Gomes.
[6][7] To
ensure that the defendants' statements were freely given and voluntary, the
judge must examine the totality of the relevant circumstances, including the
evidence of the defendants' conduct, their physical and mental conditions, and
the details of the interrogations. Commonwealth v. Wilborne,
382 Mass. [402 Mass. 341] 241, 252, 415 N.E.2d 192 (1981), and
cases cited. Although alcohol
intoxication is an important factor bearing on the issue of voluntariness,
intoxication alone is not sufficient to negate an otherwise voluntary act.
Commonwealth v. Lanoue, 392 Mass. 583,
587, 467 N.E.2d 159 (1984).
[8] After
viewing the videotaped confessions, the judge made findings that each defendant
was both sober and relaxed as he recounted the details of the killing. This finding was supported by the
investigating officer's testimony that both defendants appeared sober on the
evening of the interrogation. There is
no indication on the record that the defendants were subjected to an
unnecessarily lengthy interrogation, or that they were deprived of food, drink
or other physical necessities. Nor is
there evidence that the defendants were threatened or cajoled into making the
statements. The judge did not err in
denying the defendants' motions to suppress their statements.
The
defendants further argue that the police officers intentionally violated G.L. c. 276, § 33A (1986 ed.), by failing to inform them of
their right to use a telephone upon arrival at the police station. The defendants claim that suppression of
their confessions is a reasonable sanction for noncompliance with § 33A.
[9] On
review of the record, there is no evidence that the police intentionally
prevented the defendants from communicating with family members or counsel by
failing to inform them within one hour of arrest of their right to make a
telephone call. The defendants in this
case were fully informed of their Miranda rights and had access to a telephone,
but did not request to make a call. Two
to three hours later, during the booking procedure, the defendants were
informed of their right to use a telephone.
Although it was error for the police officers not to inform the
defendants in a timely manner of their right to make a telephone call, the
error does not warrant suppression of the confessions on the record in this
case.
Commonwealth v. Jones, 362 Mass. 497, 502‑503, 287 N.E.2d 599
(1972) (suppression warranted only where police intentionally deprive defendant
of telephone call).
[10][11]
The defendants also submit that the motion judge erroneously denied their
motion to suppress physical evidence seized during [402 Mass. 342] the
second search of their residence. We are
unpersuaded.
The record supports the judge's conclusion that the totality of the
circumstances demonstrated beyond a reasonable doubt that the defendants freely
and voluntarily consented to a second search.
(FN4)
[12] 3. Motion to dismiss indictments. The defendants assert that the judge erred
in denying their motion to dismiss the indictments based on the presence of an
additional assistant district attorney during the grand jury proceedings. The defendants' argument is without merit. The Massachusetts Rules of Criminal Procedure
provide that: "Attorneys from the
Commonwealth who are necessary or
convenient to the presentation of the evidence ... may be present while the
grand jury is in session" (emphasis added). Mass.R.Crim.P.
5(c), 378 Mass. 851 (1979). Since the
assistant district attorney was not present as a grand jury witness, but merely as
an assistant to the chief prosecutor, the judge properly denied the motion to
dismiss.
4. Motion to sever. Wayne filed a motion pursuant to rule
9(d)(1) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 860 (1979),
for a severance of his trial from the trial of his codefendant, David. Wayne presented two grounds in support of his
motion: (1) that the law pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), mandates severance; and (2) that State law requires separate
trials under Commonwealth v. Moran, 387 Mass. 644, 660‑661,
442 N.E.2d 399 (1982).
[13][14]
Under the rule espoused in Bruton v. United States, supra, the confrontation
clause of the Sixth Amendment to the United States Constitution entitles a
defendant to severance where a codefendant's confession is admitted inculpating
the defendant, and the codefendant does not take the stand. Both Wayne and David took the stand and were
subjected to cross‑examination.
Therefore, as regards the Bruton issue, there was no error. Commonwealth v. Moran, 387
Mass. 644, 655, 442 N.E.2d 399 (1982).
[402 Mass. 343] As we noted, however, in
Commonwealth v. Moran, supra, our inquiry as to the necessity of severance
does not end with a Bruton
analysis. Rule 9(d)(1) of the
Massachusetts Rules of criminal Procedure provides: "If it appears that a joinder of offenses or of defendants is not in the best
interests of justice, the judge may upon his own motion or the motion of either
party order an election of separate trials of counts, grant a severance of
defendants, or provide whatever other relief justice may require." Although severance under this rule is
usually a matter within the sound discretion of the trial judge, defendants
should not be tried jointly where their defenses are "mutually
antagonistic and irreconcilable," and "[t]he prejudice to each
defendant [is] compelling." Commonwealth v. Moran, supra at 659, 442
N.E.2d 399. See Commonwealth v. Sinnott, 399 Mass. 863, 874, 507 N.E.2d 699
(1987). These defendants were not so
situated.
In Commonwealth v. Moran, supra, the
Commonwealth's theory of the case was that at least one of the defendants, but
not necessarily both of them, robbed and killed the victim. We held that their defenses were antagonistic
and irreconcilable because "[t]he only realistic escape for either
defendant was to blame the other." Id., 387 Mass. at 659, 442 N.E.2d
399. Here, both defendants admitted to
their participation in the crime. There
is no suggestion from the evidence that one defendant could exculpate himself
by shifting exclusive blame to the other, nor did one defendant seek to avoid
responsibility by putting blame on the other.
There was no error in denying the defendants' motion to sever.
5. Manslaughter charge. Defense counsel argued to the judge that
because evidence was presented that the victim struck two blows to the face of Wayne
during the course of the robbery, sufficient evidence of provocation existed to
require the judge under Massachusetts law to instruct the jury on the lesser
included offense of voluntary manslaughter.
The judge replied that in ruling on whether an instruction on
manslaughter should be given he would consider the evidence "in a view
most favorable to the Commonwealth."
Obviously, that was a slip of the tongue.
[15] It is
well‑established that a manslaughter charge should be given if, on any
view of the evidence, a finding of manslaughter [402 Mass. 344] would
be warranted. See, e.g.,
Commonwealth v. Garabedian, 399 Mass. 304,
313, 503 N.E.2d 1290 (1987). After
reviewing the record, however, we find that the judge's misstatement of the law
did not affect the correctness of his decision to refrain from charging the
jury on voluntary manslaughter.
[16]
Instructions on voluntary manslaughter are required "if there is evidence
of provocation deemed adequate in law to cause the accused to lose his self‑control
in the heat of passion, and if the killing followed the provocation before
sufficient time had elapsed for the accused's temper to
cool." Commonwealth v. Schnopps,
383 Mass. 178, 180, 417 N.E.2d 1213 (1981), S.C., 390 Mass. 722, 459 N.E.2d 98
(1984). "The evidence must be
sufficient to create a reasonable doubt in the minds of a rational jury that a
defendant's actions were both objectively and subjectively reasonable."
Commonwealth v. McLeod, 394 Mass. 727, 738, 477 N.E.2d 972, cert.
denied sub nom. Aiello v. Massachusetts, 474 U.S. 919,
106 S.Ct. 248, 88 L.Ed.2d 256 (1985).
[17] In
considering the evidence of the alleged provocation by the victim, we remain
mindful that "[t]he fact that the evidence may not be of a character to
inspire belief does not authorize the refusal of an instruction based
thereupon.... However incredible the
testimony of a defendant may be he is entitled to an instruction based on the
hypothesis that it is entirely true." Commonwealth v. Garabedian,
supra, 399 Mass. at 313, 503 N.E.2d 1290, quoting Commonwealth v. Schnopps, supra, 383 Mass. at 182, 417 N.E.2d
1213. However, even assuming as true
the defendants' testimony that during the incident the victim struck two blows
to Wayne's face, the defendants' assertion that a trier
of fact could infer from these acts that there existed sudden combat or
reasonable provocation for a malice‑free killing, is untenable. Given the circumstances of the crime, the
victim's age (he was seventy‑nine years old), and his handicapped
condition, no reasonable jury could have accepted the suggestion that the
defendants were provoked into the brutal killing. See Commonwealth v. Rembiszewski,
363 Mass. 311, 321, 293 N.E.2d 919 (1973) (scratches on defendant‑husband's
face caused by victim‑wife deemed insufficient evidence of provocation to
warrant manslaughter charge). Moreover,
the blows to Wayne's face could hardly be considered reasonable provocation for
David twice to choke the victim, and then later to [402 Mass. 345] join
with Wayne in stoning the victim.
Despite the judge's misstatement of the proper evidentiary standard, we
find no error in his refusal to charge the jury on voluntary manslaughter.
The
judgments against Wayne Parker for murder in the first degree and for unarmed
robbery are vacated, as are the judgments against David Parker for murder in
the first degree and for larceny from the person. The cases are remanded to the Superior Court
for a new trial.
Judgments reversed.
Verdicts set aside.
(FN1.) Two against Wayne D. Parker and one
against David J. Parker.
(FN2.)
The fact that Miranda warnings were given to the defendants at their home does
not mandate the conclusion that the defendants were then under arrest. Rather, the defendants were informed of their
rights "out of abundant caution to counteract any coercive element."
Commonwealth v. Alicea, 376 Mass. 506,
513, 381 N.E.2d 144 (1978).
(FN3.)
The defendants' reliance on Commonwealth v. Bottari,
395 Mass. 777, 482 N.E.2d 321 (1985), is misplaced. In that case, police officers, acting on an
informant's tip, surrounded the defendant's vehicle. At gunpoint, the defendant and his companions
were ordered out of the automobile. We
suppressed evidence from the arrest because the police conduct exceeded the
limits of an investigative stop and probable cause was lacking for a valid
arrest.
Id. at 782‑783, 482 N.E.2d 321. There was no such showing of force in the
instant case.
(FN4.)
Nor are we persuaded by the defendants' argument that the search warrant was
illegal "ab initio"
because it was not issued by a neutral magistrate. The record indicates that the magistrate
retyped the supporting affidavit before issuing a search warrant. This action, by itself, in no way detracted
from the magistrate's impartiality.