|
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. Paszko, 391
Supreme Judicial Court of Massachusetts, Hampshire.
Argued
Decided
Conrad W. Fisher, Worcester, for defendant.
David S. Ross, Asst. Dist. Atty., for the
Commonwealth.
Before [391
ABRAMS, Justice.
The
defendant, Emilian Paszko, appeals from his conviction of murder in the first
degree. Paszko's principal allegations
of error are (1) the admission of out‑of‑court photographic
identifications by three witnesses and the admission of an in‑court
identification by one of the witnesses,[391
Mass. 166] (2) the admission of the defendant's
statements to his cellmates, (3) the failure to instruct the jurors on the voluntariness
of the defendant's statements, (4) the admission of a denim jacket, (5) the
scope of the order of reciprocal discovery, (6) the admission of testimony by
two witnesses based on their prehypnotic memories, (7) the questioning of
Cheryl Paszko, his wife, before the grand jury without informing her of her
privilege not to testify and the impeachment of his wife at trial with private
conversations, and (8) the timing of the closing arguments and instructions to
the
jury. (FN1)
We conclude that there is no reversible error, and no substantial
likelihood of a miscarriage of justice.
G.L. c. 278, § 33E. Therefore, we
affirm Paszko's conviction and decline to exercise our power under G.L. c. 278,
§ 33E, in favor of the defendant.
We
summarize the facts. (FN2) On
The case
against the defendant was circumstantial.
The evidence implicating the defendant in the shooting included
statements made by him before and after the date of the [391 Mass. 167]
crime; eyewitness testimony placing a
person matching the defendant's description in two nearby pharmacies on the
date of the crime; and a .22 caliber
black semi‑automatic Ruger pistol, ballistically linked to a shell casing
found at Merrigan's, that was recovered after the defendant's sister‑in‑law
led police to a site in Vermont where, according to her, the defendant had
hidden the weapon two days after Zive's death.
(FN4)
1. Admissibility of identifications. On the morning of the shooting, George
O'Leary, the owner of Tremblay's Pharmacy in
The
defendant moved to suppress any reference at trial to the three witnesses' out‑of‑court
photographic identifications of the defendant as the man who had visited
pharmacies near Merrigan's on the date Zive was killed. The defendant claims error in the judge's
ruling admitting evidence of these pretrial identifications as well as the in‑court
identification by Curtin.
We set
forth the judge's findings, amplified by the undisputed testimony at the
suppression hearing. On June 8, 1980,
O'Leary called the police after the stranger departed from Tremblay's. On the same day, after Zive's body was found,
O'Leary gave a description to the police.
He was then shown an array of seven color photographs of young white
males with facial hair. A photograph
depicting the defendant with long straight hair and a mustache was included,
but O'Leary did not select that or any other photograph in this initial
array. The next day, O'Leary was shown
seven black and white photographs of young white males with facial hair,
including a photograph of the defendant that differed from the color photograph
in the first array, in that the defendant looked older, had curly hair, had a
beard in addition to the mustache, and wore an earring in one ear. (FN6)
The defendant was the only person pictured in both arrays. O'Leary selected the defendant's photograph
as "most like the person I saw in my store earlier." On the evening of June 8, after hearing a
report of Zive's death, Washington called the police and described the man she
had seen. Shortly thereafter, she was
shown the black and white photographic array.
Washington chose the defendant's[391
Mass. 169] photograph, stating, "This one looks the
most like the one." The next day,
she picked the defendant's photograph from the colored array, again stating
that it was most representative of the man in the pharmacy. Washington noted that only the defendant's
picture appeared in both arrays. Curtin
was also shown the two arrays on separate occasions, subsequent to his
observation of the man in his drugstore and, likewise, picked the defendant's
photograph from each array as being closest to his recollection of that
person. At trial, Curtin said that he
told the police, "This is the man," but later admitted his
identification may not have been so unequivocal. There was no evidence that the witnesses
received any prompting from police at the time they made their selections. All three witnesses were able to select the
defendant's photographs from the two arrays (FN7) at the April 15, 1981,
suppression hearing.
The
defendant argues that the inclusion of a photograph of him in each of the two
photographic arrays displayed to the witnesses, whereas no other suspect was
considered in both arrays, tainted the out‑of‑court
identifications, and Curtin's in‑court identification, so severely as to
mandate their suppression. We do not
agree. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968), the Supreme Court noted that the danger of misidentification
"will be increased if the police display to the witness only the picture
of a single individual who generally resembles the person he saw, or if they
show him the pictures of several persons among which the photograph of a single
such individual recurs or is in some way emphasized" (footnote omitted). Id.
at 383, 88 S.Ct. at 971. Nonetheless,
duplication of a defendant's photograph in one or more arrays has not been held sufficient by itself
to compel exclusion of a resulting identification. See
Commonwealth v. [391 Mass. 170] Kostka, 370 Mass. 516, 523‑524,
350 N.E.2d 444 (1976) (witness shown a dozen photographs including two of the
defendant); Commonwealth v. Mobley, 369 Mass. 892,
896‑897, 344 N.E.2d 181 (1976) (witness shown six photographs including
one of the defendant, then shown second array including photograph of the
defendant committing unrelated robbery); Commonwealth v. Avery, 12 Mass.App. 97,
421 N.E.2d 787 (1981) (defendant pictured in three of eighteen photographs);
Commonwealth v. LaPierre, 10 Mass.App. 641, 411 N.E.2d 1314 (1980)
(defendant's photograph contained in three successive arrays);
Commonwealth v. Rodriguez, 6 Mass.App. 738, 747, 383 N.E.2d 851
(1978), rev'd on other ground but approved in relevant part, 378 Mass. 296, 305‑306,
391 N.E.2d 889 (1979) (no error in failure to suppress second array in which
witness selected defendant's photograph but made no positive identification
following initial array with same result); United States v. Eatherton, 519 F.2d 603
(1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975)
(witness shown multiple arrays, each including defendant's photograph);
United States v. Bowie, 515 F.2d 3 (7th Cir.1975) (witness selected
defendant's picture from array of five black and white photographs, then from
array of six color photographs;
defendant only suspect featured in both arrays). But see
United States v. Mears, 614 F.2d 1175 (8th Cir.), cert. denied, 446 U.S.
945, 100 S.Ct. 2174, 64 L.Ed.2d 801 (1980) (improper to include two pictures of
defendant in array of seven photographs).
Rather, the admissibility of identifications obtained in such
circumstances is to be determined with reference to "the totality of the
circumstances" of the challenged episode of identification.
Commonwealth v. Botelho, 369 Mass. 860, 867, 343 N.E.2d 876 (1976),
quoting Stovall v. Denno, 388 U.S.
293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).
[1] In the
case we review, there is no allegation that the initial array of seven
photographs was in any way suggestive.
Cf. United States v. Sanders,
479 F.2d 1193, 1197 (D.C.Cir.1973). Nor,
apart from the reappearance of a dissimilar photograph of the defendant in the
second array, was the defendant singled out in any manner. Cf.
United States v. Gambrill, 449 F.2d 1148 (D.C.Cir.1971). Although the repeated appearance of the
defendant in the two photographic[391
Mass. 171] arrays is susceptible to criticism,
"there was no passing or near passing of the constitutional boundary into
fatal suggestiveness." Commonwealth v. Cincotta, 379 Mass. 391,
397, 398 N.E.2d 478 (1979).
[2] Curtin
and Washington were consistent in refraining from positively identifying the
defendant at both arrays, while maintaining that his photograph was the one
most representative of the man they had seen.
Their adherence to their reservations at the second array "indicate[s]
that 'the police conduct was without significant effect.' "
Commonwealth v. Correia, 381 Mass. 65, 79, 407 N.E.2d 1216 (1980),
quoting United States v. Eatherton, supra
at 609. Although O'Leary's
identification at the second array was similarly circumspect, the trial judge's
finding that O'Leary had not selected the defendant's photograph during the
initial display establishes a greater likelihood that his choice at the second
array may have been influenced by the duplication. However, we have previously declined to adopt
"a per se exclusionary rule condemning as constitutionally infirm all
subsequent identifications of a defendant by any witness who had previously
failed to select the defendant,"
Commonwealth v. Lacy, 371 Mass. 363, 369, 358 N.E.2d 419 (1976), and find
no unconstitutional suggestiveness where, as here, there were substantial
differences between the two photographs, and the witness was able to make an
identification from the more recent picture.
See Commonwealth v. LaPierre,
10 Mass.App. 641, 644, 411 N.E.2d 1314 (1980); United States v. Bowie, 515
F.2d 3, 7 (7th Cir.1975). (FN8)
[391 Mass. 172] In light of our conclusion that the pretrial identifications were
not unduly suggestive, we perceive no defect in the trial judge's decision to
permit in‑court identifications by the witnesses. Commonwealth v. Venios, 378
Mass. 24, 29, 389 N.E.2d 395 (1979). Commonwealth v. Kostka, 370 Mass. 516,
524, 350 N.E.2d 444 (1976). Only Curtin
made an in‑court identification.
To the extent that Curtin's in‑court identification demonstrated
greater certitude than did his photographic identifications, his previous
reservations "were properly presented to the jury by defense counsel on
cross‑examination of the witness" and went to the weight of his
testimony. Commonwealth v. Correia, 381 Mass. 65,
79, 407 N.E.2d 1216 (1980). Other
defects in the witnesses' descriptions of the stranger were for the jury to
assess in determining the probative value of the identification testimony. (FN9)
"The question raised by a motion to suppress identification
testimony is not whether the witness was or might be mistaken but whether any
possible mistake was or would be the product of improper suggestions made by
the police." Commonwealth v. Gordon, 6 Mass.App. 230,
237, 374 N.E.2d 1228 (1978). We conclude
that there is no error in the denial of the defendant's motion to suppress
these identifications.
[3] 2. Voluntariness of the defendant's statements
to cellmates. The defendant filed a
motion to suppress the admissions to shooting a pharmacist made to cellmates at
a New York jail, alleging that such statements were involuntary. Because of logistical difficulties in
simultaneously assembling all of the witnesses whose testimony was pertinent to
the [391 Mass. 173] motion, two out‑of‑State
witnesses, cellmates Michael Lemasters Webb and Michael Tomes, were permitted
to testify at trial before the judge conducted a voir dire on the voluntariness
question and ruled on the motion. (FN10) After hearing the voir dire testimony of a third cellmate, Kenneth Raynor, as well
as that of the defendant and three police officers who saw the defendant on
June 19 and 20, 1980, the judge denied the motion.
We
summarize the judge's findings. The
defendant had been a drug addict for several years before his arrest on June
19, 1980. Prior to the automobile chase
that culminated in his arrest, he had consumed Valium and ingested
morphine. Although, according to his own
testimony at the voir dire, the defendant was not "high" at the time
of the chase, he acted irrationally at the scene of his arrest on the New York
Thruway, ignoring the instructions of the arresting police officer, who was
pointing a gun at the defendant. The
arresting officer said the defendant appeared intoxicated and disheveled, and
had sunken bloodshot eyes. Further, at
the scene of the arrest, the defendant, despite handcuffs, managed to remove a
vial from his jacket pocket and ingest an unknown quantity of Valium.
In the
early afternoon of June 19, the defendant was transported to the Fredonia jail,
where he began to exhibit withdrawal symptoms, including shaking, vomiting, and
inability to eat. The defendant said he
was withdrawing [391 Mass. 174] from morphine and heroin. Sores were apparent on his face and
arms. The defendant continued to exhibit
irrational behavior. However, during an
interview with a detective, the defendant responded intelligently to questions
and appeared capable of focusing on the subjects discussed in the course of the
interview. (FN11) Because of his irrational behavior, the
defendant was shackled for approximately four hours on June 19. The defendant was arraigned at 11 P.M. He appeared calm.
In the
early hours of June 20, the defendant was placed in a large holding cell with
several other prisoners awaiting court appearances. The following morning, the defendant was
still experiencing withdrawal symptoms and discomfort, (FN12) and requested
medical treatment to alleviate his withdrawal symptoms. (FN13)
During
this period, in response to questions directed at him by one or more of his
cellmates, the defendant made the incriminating statements that were the
subject of the motion to suppress.
Michael Lemasters Webb, a hitchhiker in the [391 Mass. 175] defendant's
automobile who had been arrested and put in the holding cell, heard the
defendant say, "I was robbing a pharmacist and he pulled a gun on me so I
shot him in the head." Michael
Tomes said that he heard someone in the holding cell claim to have killed a
pharmacist in Massachusetts. Kenneth
Raynor heard the defendant state that he had robbed a drugstore in
Massachusetts, and that he had accidentally shot the pharmacist when the
pharmacist reached for the defendant's gun as he was handing drugs to the
defendant. The defendant subsequently
told Raynor that he had not really shot the pharmacist. A fourth cellmate, John Bailey, who was called
by the defense, stated that the defendant was "high" on drugs, had
said that he was in jail for shooting a pharmacist, but had not admitted
committing the crime. On cross‑examination,
Bailey stated that the defendant did say he had shot a man while robbing a
pharmacy, but that, upon reflection, Bailey had concluded that the defendant
meant to say only that he was accused of doing so.
During the
same period, the defendant was aware of the possibility that he would be
indicted in connection with the homicide of the pharmacist in Easthampton, and
made statements exonerating Lemasters Webb, the hitchhiker who had been
arrested along with the defendant at the time the defendant's car was
stopped. The defendant, who acknowledged
that he had been arrested on various prior occasions, and that he was familiar
with the Miranda warnings, stated at
the voir dire that he was aware of his right to remain silent at the time he
was in the cell. The defendant denied
that he had made incriminating statements.
[4] There
is no per se rule excluding as involuntary statements made during drug
withdrawal, United States v. Harden,
480 F.2d 649, 651 (8th Cir.1973); United States v. Arcediano, 371 F.Supp.
457, 466 (D.N.J.1974); see Commonwealth v. Fielding, 371 Mass. 97,
112, 353 N.E.2d 719 (1976); Buford v. United States, 337 F.2d 439,
440 (7th Cir.1964). However, when such
statements are made to police officers, a heavy burden rests on the government
to show that the defendant's [391
Mass. 176] waiver of his
constitutional rights, and subsequent confession, were voluntary.
United States v. Monroe, 397 F.Supp. 726 (D.D.C.1975). Cf.
Commonwealth v. Benoit, 389 Mass. 411, 420, 451 N.E.2d 101 (1983);
United States v. Medina, 552 F.2d 181 (7th Cir.), cert. denied, 434
U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States ex rel. Hayward
v. Johnson, 508 F.2d 322, 327‑328 (3d Cir.), cert. denied, 422 U.S.
1011, 95 S.Ct. 2637, 45 L.Ed.2d 675 (1975); United States v. Poole, 495 F.2d 115
(D.C.Cir.1974), cert. denied, 422 U.S. 1048, 95 S.Ct. 2667, 45 L.Ed.2d 701
(1975);
Ybarra v. United States, 461 F.2d 1195 (9th Cir.1972); Maez
v. United States, 367 F.2d 139 (10th Cir.1966) (statements not involuntary
absent finding that they were made contemporaneously with manifestation of
withdrawal symptoms). In Commonwealth v. Fielding, supra, we
noted that had the defendants been suffering severe withdrawal symptoms,
"their confessions might be subject to question on grounds of
involuntariness," id. 371 Mass.
at 111, 353 N.E.2d 719, but, conceding that the defendants had been
"troubled" by drug withdrawal,
id., we held that withdrawal in that case "did not impose such duress
as to invalidate the confessions,"
id. at 112, 353 N.E.2d 719.
(FN14) Had Paszko's statements
been made in response to police interrogation, rather than in the course of
casual conversation with cellmates, we might well be reluctant to uphold a
finding of voluntariness. However, an
assessment of "the totality of relevant circumstances," 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), leads us to the conclusion in this case that the
defendant's statements were properly admitted.
[5] In Commonwealth v. Mahnke, supra, we held
that, under the law of this Commonwealth, (FN15) a judge must determine[391 Mass. 177] the voluntariness of statements
"extracted by private coercion, unalloyed with any official government
involvement." Commonwealth v. Mahnke, supra 368 Mass.
at 680, 335 N.E.2d 660. Because we
conclude that the trial judge was warranted in finding the admissions were
voluntarily made, we need not now decide whether Mahnke, which discussed "[s]tatements extracted by a howling
lynch mob or a lawless private pack of vigilantes from a terrorized, pliable
suspect," id. at 681, 335 N.E.2d
660, should be extended to cover statements made by a suspect who, though in a
debilitated condition, is not induced, tricked, or coerced in any way by the
private citizens to whom he conveys damaging information. See
Commonwealth v. Vazquez, 387 Mass. 96, 101 n. 9, 438 N.E.2d 856 (1982);
Commonwealth v. Brady, 380 Mass. 44, 50 n. 2, 410 N.E.2d 695 (1980).
The
rationale underlying the inadmissibility of a statement extracted from a person
who by dint of physical or mental impediments is incapable of withholding the
information conveyed, "can without difficulty be articulated in terms of
the unreliability of the [statement], the lack of rational choice of the
accused, or simply a strong conviction that our system of law enforcement
should not operate so as to take advantage of a person in this fashion."
Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4
L.Ed.2d 242 (1960). The judge found
that, when the defendant made the damaging statements, he "was not so
influenced by any drugs he had taken the previous day that he lacked
understanding of what he was saying to his cellmates." The judge also found that the defendant
"was rational, aware of his surroundings and the persons [391 Mass. 178] with him and what their respective roles were." The record supports these findings.
[6][7][8] There
is no evidence of express or implied threats or promises by the defendant's
cellmates, or of mental impairment so severe as to impugn the reliability of
the defendant's statements. See Commonwealth v. Vazquez, supra;
Commonwealth v. Morey, 67 Mass. (1
Gray) 461, 462‑463 (1854). Nor is
this a case presenting a substantial likelihood that the defendant's admissions
were obtained as a result of a debilitating condition that left him
"devoid of his normal will to protect himself and rendered indifferent to
protect himself." Pea v. United States, 397 F.2d 627, 634
(D.C.Cir.1967). The defendant, in fact,
asked for an attorney and terminated his conversation with police apparently
concluding that it was not in his interest to speak with police in the absence
of an attorney. The decision by the
defendant not to speak to police without legal advice but to speak to cellmates
and acquaintances (FN16) indicates an ability to choose between speaking or
remaining silent. Such a choice is
consistent with a rational intellect and indicates that the defendant's will
was not overborne by his withdrawal symptoms.
We believe that the judge could properly conclude that the defendant
"took the risk that whatever he said to others than the police might be
told to the police." Commonwealth v. Martin, 357 Mass. 190,
193, 257 N.E.2d 444 (1970). (FN17)
[9] 3. Failure to instruct jury on voluntariness. The defendant asserts reversible error in
the trial judge's failure to comply with our "humane practice" (FN18)
by instructing the jury to disregard the defendant's admissions to cellmates if
the jury determined the admissions were involuntary. See
Commonwealth v. Harris, 371 Mass. 462, 469, 358 N.E.2d 982 (1976).
The
defendant's trial took place before our decision in Commonwealth v. Tavares, 385 Mass. 140, 150, 430 N.E.2d 1198,
cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). In that case, we extended the applicability
of the humane practice to admissions (FN19) as well as full confessions. The viability of the defendant's claim of
error is thus linked to the question whether our holding in Tavares has retroactive effect.
(FN20)
We have
recently examined the factors pertinent to whether a decision should be applied
to trials preceding the date on which it was rendered. We noted in Commonwealth v. Breese, 389 Mass. 540, 451 N.E.2d 413 (1983), that
"[d]ecisional law usually [391
Mass. 180] is retroactive. When a decision announces a new rule,
however, the issue arises whether it will be applied only prospectively." Id.
at 541, 451 N.E.2d 413. Commonwealth v. Tavares, supra, announced
a new rule concerning the applicability of the humane practice to
admissions. The exclusion of admissions
from the scope of the humane practice dates from the early part of the
century. See Commonwealth v. Jokinen, 257 Mass. 429, 430, 154 N.E. 189 (1926);
Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E. 571 (1923). In 1975, we characterized this distinction
between admissions and confessions as "settled Massachusetts law."
Commonwealth v. Mahnke, 368 Mass. 662, 679 n. 24, 335 N.E.2d 660
(1975). Although we subsequently
questioned the distinction without abolishing it, see Commonwealth v. Garcia, 379 Mass. 422, 432, 399 N.E.2d 460 (1980);
Commonwealth v. Fournier, 372 Mass. 346, 348, 361 N.E.2d 1294
(1977), we cannot say that judges conducting trials prior to Commonwealth v. Tavares, were
unjustified in disregarding these dicta and adhering to settled law. Because
Tavares constituted a "clear break with the past," we pursue the
question whether Tavares should have
prospective application only. See Commonwealth v. Breese, supra 389 Mass.
at 546, 451 N.E.2d 413.
Our
inquiry requires consideration of three criteria: "(a) the purpose to be served by the new
standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new
standards." Commonwealth v. Breese, supra at 548,
451 N.E.2d 413, quoting Stovall v. Denno,
388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). The initial, and often determinative,
criterion necessitates an evaluation whether "the major purpose of new ..
doctrine is to overcome an aspect of the criminal trial that substantially
impairs its truth‑finding function and so raises serious questions about
the accuracy of guilty verdicts in past trials." Ivan V. v. City of New York,
407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972), quoting Williams v. United States, 401 U.S.
646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971). Accord
Commonwealth v. Breese, supra 389 Mass. at 548, 451 N.E.2d 413.
In
evaluating whether the nonapplication of the "humane practice"
requirements to admissions introduced in trials [391 Mass. 181]
preceding Tavares "raises
serious questions about the accuracy of guilty verdicts" in those trials,
we are mindful that admissions do not have the evidentiary impact or importance
of full confessions. Whereas a
confession is an assertion of guilt and is sufficient by itself to sustain a
conviction, the term "admission" incorporates a spectrum of
statements ranging from those of attenuated relevance to the prosecution's
case, see United States v. Tarr, 589
F.2d 55, 62 (1st Cir.1978), to those that are highly probative, though not
conclusive, of the defendant's guilt.
Given that an admission must be supported by independent evidence of a
defendant's guilt, see Commonwealth v.
Haywood, supra, there is a decreased risk that the accuracy of a conviction
is threatened by the potentiality that the admission was
"involuntary." Because of
this diminished likelihood of erroneous verdicts, constitutionally mandated
inquiries into voluntariness have not been held applicable to admissions. See
Stein v. New York, 346 U.S. 156, 162‑163 n. 5, 73 S.Ct. 1077, 1081‑1082
n. 5, 97 L.Ed. 1522 (1953), overruled on other grounds, Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788, 12
L.Ed.2d 908 (1964); United States v. Tarr, supra. But see
People v. Haydel, 12 Cal.3d 190, 197, 115 Cal.Rptr. 394, 524 P.2d 866
(1974). (FN21)
Although
in Tavares we extended to admissions
the nonconstitutional protections afforded by our humane practice in
recognition that in some circumstances an admission may exert an influence on a
jury approximating that of a confession, we are not persuaded that the
likelihood of erroneous verdicts in past cases is such as to outweigh other
factors [391 Mass. 182] counseling against retroactive
application of Tavares. We have already noted the justified reliance
of trial judges on the admission‑confession dichotomy in conducting
trials prior to Tavares. Moreover, "although we cannot predict
how many defendants convicted before [Tavares
] ... would seek to attack their convictions on the ground that the trial judge
erred in failing to instruct the jury in accordance with [Tavares ], we are confident that the number of such attacks and
resulting appeals and retrials would be enough to burden substantially the
administration of criminal justice in the Commonwealth."
Commonwealth v. Breese, supra 389 Mass. at 550, 451 N.E.2d 413.
We
conclude that admissions introduced at trials conducted prior to our decision
in Tavares are not subject to the
"humane practice." (FN22)
Consequently, there was no error in the judge's failure to instruct the
jury to disregard Paszko's statements to cellmates if they determined such
statements to be involuntary.
Although
we decide that jury consideration of the voluntariness of the defendant's
admissions to private citizens was not necessary in the instant case, we leave
open the possibility that in other circumstances statements made to private
citizens may sufficiently implicate voluntariness concerns as to require jury
consideration. See Commonwealth v. Vazquez, 387 Mass. 96, 101 n. 9, 438 N.E.2d 856
(1982);
Commonwealth v. Brady, 380 Mass. 44, 50 n. 2, 410 N.E.2d 695
(1980). The better practice is to treat
the defendant's statements to private citizens as if they were statements to
police, and to conduct a voir dire on [391
Mass. 183] the voluntariness of the
statements. If the judge determines that
the statements are voluntary, the issue of voluntariness should be resubmitted
to the jury for consideration.
4. The denim jacket. The
defendant moved to suppress, as the product of an illegal search, a denim
jacket found in one of several motel rooms he inhabited during the eleven‑day
interval between the date the pharmacist was shot and the date the defendant
was arrested in New York. It should be
recalled that the stranger who visited the two pharmacies near Merrigan's wore
a denim jacket. After a hearing the
judge denied the motion.
The
judge's findings, along with the undisputed testimony at the hearing, establish
the following. On June 11, 1980, the
defendant registered under a former neighbor's name at the Bedford Motel in
Bedford Township, Michigan. After
occupying a single room for two days, the defendant requested a room with
kitchen facilities. On June 13, the
defendant prepaid a week's stay in an efficiency unit. The rental expired at 11 A.M. on June 20,
1980. On June 18, two motel employees
observed the defendant digging near bushes located outside his room. The defendant turned around and saw that he
had been spotted. Later that day, the
defendant registered under his brother's name at a motel one mile from the
Bedford Motel. At 8 P.M., on June 18,
the defendant left the Bedford Motel, taking with him his personal belongings
and clothing. Later that night, the defendant
registered and slept in a motel in Pennsylvania. At the time, he carried two or three
suitcases filled with his belongings.
On June
19, the defendant was arrested on the New York Thruway. The defendant was driving in an eastward
direction. The defendant had in his
possession a key to the efficiency unit at the Bedford Motel. Later that day, a police officer was asked to
assist in a search for the defendant's gun.
The officer went to the motel, and with the manager's consent, conducted
a warrantless search of the room the defendant had occupied. The officer seized some syringes and [391 Mass. 184] drugs, (FN23) but left behind a jacket he saw hanging on the
bedroom door.
On June
20, after the defendant's rental period had expired, the motel manager
instructed a maid to strip the defendant's room. The removal of items from a vacated room was
standard procedure. At the time of the
stripping, the drawers and closets in the room were empty. On top of a bureau, the maid found a denim
jacket. In addition, the maid found a
man's wristwatch on a table, and a substantial supply of food and groceries in the kitchen. The maid gave the jacket and wristwatch to
the motel manager. At some point before
the grand jury returned an indictment against the defendant, the manager turned
over the jacket to the police.
The judge
found that, at the time the jacket was seized, the room was abandoned, and that
the defendant therefore had no constitutionally protected privacy interest in
the premises. (FN24) The defendant argues that the room was not
abandoned at the time the police officer conducted the warrantless search, and
that the maid's subsequent seizure of the jacket was the tainted fruit of an
illegal search. We do not agree.
[10]
Although the judge did not specify in his findings at what point the defendant
abandoned the room, the evidence warrants a conclusion that the defendant did
so when he departed on June 18, and that there was no illegality in the
officer's subsequent search.
"Abandonment is primarily a question of intent, and intent may be
inferred from words spoken, acts done, and other objective facts."
United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). The defendant's[391 Mass. 185] registration at a nearby motel on the same
day he was detected digging in the Bedford Motel's garden, supports the
inference that the defendant believed he would be in jeopardy if he remained at
the Bedford after June 18. This
inference derives further support from the defendant's removal on June 18 of
all his personal effects, with the exception of the jacket and wristwatch, from
the Bedford Motel room. The jacket and
the wristwatch "could have been easily overlooked by [the] defendant ...
and do not, therefore, demonstrate that the room was not abandoned."
United States v. Akin, 562 F.2d 459, 464 (7th Cir.1977), cert.
denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978). Nor is the defendant's failure to take with
him perishables and other foodstuffs inconsistent with abandonment. The defendant's journey to Pennsylvania on
June 18, and his interrupted drive on June 19, when, according to the
defendant, he was headed for New York City, refute an intent to return to the
motel room before checkout time on June 20.
Although the defendant testified at the suppression hearing that he did
intend to return to the Bedford Motel, the trial judge was not required to
believe this testimony. Commonwealth v. Hooks, 375 Mass. 284,
289, 376 N.E.2d 857 (1978). The fact
that the defendant retained a property interest in the room until his one‑week
rental period expired on June 20 does not preclude the conclusion that he
abandoned the room on June 18. United States v. Wilson, 472 F.2d 901,
903 (9th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 176, 38 L.Ed.2d 116
(1973);
Feguer v. United States, 302 F.2d 214, 249 (8th Cir.) (Blackmun, J.), cert. denied, 371 U.S. 872,
83 S.Ct. 123, 9 L.Ed.2d 110 (1962). See Abel v. United States, 362 U.S. 217,
241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960).
[11] Even
if the defendant did not abandon the room on June 18, the motion to suppress
was properly denied. "[A] guest in
a hotel or motel loses his reasonable expectation of privacy and consequently
any standing to object to 'an unauthorized search of the premises' after his
rental period has terminated." United States v. Jackson, 585 F.2d 653,
658 (4th Cir.1978), and cases cited.
Assuming that the police officer's warrantless search of the room on
June 19 violated the defendant's constitutionally protected privacy interest, [391 Mass. 186] suppression of the jacket, seized after that interest had expired
was not required unless the seizure was the "fruit of the unwarranted
intrusion." Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9
L.Ed.2d 441 (1963). Because the removal
by motel employees of items left in a vacated room was standard procedure, cf. Commonwealth v. Leone, 386 Mass. 329,
332, 435 N.E.2d 1036 (1982); Commonwealth v. Storella, 6 Mass.App.
310, 313, 375 N.E.2d 348 (1978), there is no basis for concluding that the
defendant's jacket would not have been discovered absent the officer's
search. We conclude that the
Commonwealth satisfied its burden of establishing an independent source for the
discovery of the evidence. Wong Sun v. United States, supra 371
U.S. at 488, 83 S.Ct. at 417.
(FN25) The motel manager's
decision to make available to the police the lawfully recovered evidence was
"merely [a] praiseworthy act of citizen cooperation."
Commonwealth v. Storella, supra.
5. The order for reciprocal discovery. The judge, over defense counsel's objection,
ordered the production of a report prepared by the defendant's ballistics
expert as well as a defense investigator's report describing interviews with
various witnesses, including Leo St. Lawrence.
These reports were used at trial by the prosecution to impeach the
testimony of the defense expert and of Leo St. Lawrence. The defendant claims that the discovery order
compelled him to disclose work product, in violation of Mass.R.Crim.P. 14, 378
Mass. 874 (1979), and the defendant's right to effective assistance of counsel
under the Federal and State Constitutions.
We disagree.
[391 Mass. 187] [12] Prior to trial, the prosecution turned over to the defense
the report of the prosecution's ballistics expert. The defendant does not contest the
government's assertion that grand jury testimony, written statements, and
police report summaries of oral statements by various witnesses, including Leo
St. Lawrence, were also produced for the defendant's use. The judge acted consistently with
Mass.R.Crim.P. 14(a)(3) in ordering the reciprocal production (FN26) of the
defense ballistics report (a report of "scientific tests or experiments")
and the investigator's report (containing "statements of
persons"). (FN27) The defendant's characterization of these
reports as work product is erroneous, as they contain neither "legal
research, opinions, theories, or conclusions of the adverse party or his
attorney and legal staff" nor "statements of a defendant, signed or
unsigned." Mass.R.Crim.P. 14(a)(5).
[13][14]
The defendant's reliance on the broader definition of work product under
Federal law is misplaced. See United States v. Nobles, 422 U.S. 225,
238‑240, 95 S.Ct. 2160, 2170‑2171, 45 L.Ed.2d 141 (1975) (defense
investigator's report containing witness statements treated as work product,
but privilege waived with respect to matters covered by investigator's trial
testimony). The work product doctrine is
a creature of public policy, not constitutional compulsion.
Rule 14 of the Massachusetts Rules of Criminal Procedure preserves the
"core" of the work product doctrine by "shelter[ing] the mental
processes of the attorney," United [391 Mass. 188] States v. Nobles, supra at 238, 95 S.Ct. at 2170, but unlike
the Federal doctrine, favors liberal discovery by excluding statements of
witnesses other than the defendant and nonlegal reports from the definition of
work product. (FN28) The policy of our rules is that the
availability of statements of nonparty witnesses gathered by an adversary
serves a truth‑enhancing function, see
Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82
(1973), that outweighs any resulting inconvenience or potential disincentive to
lawyers who obtain and preserve such statements in written form. See
Ward v. Peabody, 380 Mass. 805, 817, 405 N.E.2d 973 (1980). Cf.
Hickman v. Taylor, 329 U.S. 495, 510‑511, 67 S.Ct. 385, 393‑394,
91 L.Ed. 451 (1947). This public policy
determination is consistent with the constitutional right to effective
assistance of counsel. "The Sixth
Amendment does not confer the right to present testimony free from the
legitimate demands of the adversarial system;
one cannot invoke the Sixth Amendment as a justification for presenting
what might have been a half‑truth." United States v. Nobles, supra
422 U.S. at 241, 95 S.Ct. at 2171.
Documents similar to those the defendant argues should be unavailable to
the prosecution were made available to defense counsel for preparation, and
used by defense counsel for impeachment purposes. The defendant is not constitutionally
entitled to a discovery system that operates only to his benefit.
[15] 6. The admission of the prehypnotic testimony
of two witnesses. In the course of
the investigation of the pharmacist's shooting the police hypnotized four
people, including Jean Washington and Barbara Bushey. The judge permitted Washington and Bushey to
testify for the Commonwealth after obtaining an agreement from the prosecutor
that only testimony based on their prehypnotic memories would be elicited. Although the trial took place before our
decision in Commonwealth v. Kater,
388 Mass. 519, 447 N.E.2d 1190 (1983), the judge presciently precluded the
presentation of any hypnotically [391
Mass. 189] aided testimony in
compliance with our holding in Kater
that such testimony, if uncorroborated, is inadmissible.
The
defendant contends that, because the police did not fully comply with the
procedures for witness hypnosis suggested in
Commonwealth v. A Juvenile, 381 Mass. 727, 732 n. 8, 412 N.E.2d 339 (1980),
Washington's and Bushey's testimony based on prehypnotic memory should also
have been excluded. We do not
agree. We note initially that the
hypnosis of these two witnesses took place before Commonwealth v. A Juvenile was decided, and that the police did
not have the benefit of the guidelines proposed therein at the time the
hypnotic sessions were conducted.
Moreover, although in Commonwealth
v. Kater, supra, we stated that the
Juvenile procedures should be applied in a flexible manner at hypnotic
sessions subsequent to the date of decision of Kater, we explicitly declined to "impose any guidelines on
the admissibility of testimony based on the prehypnotic memory of a witness
hypnotized before the date of this opinion." Commonwealth v. Kater, supra
388 Mass. at 521, 447 N.E.2d 1190. The
fact that the Juvenile standards were
not fully met does not, therefore, entitle the defendant to a new trial.
7. Impeachment of the defendant's wife. The defendant's wife was called before the
grand jury investigating the pharmacist's death. The minutes of her grand jury testimony were
used at trial by the prosecution to impeach her testimony on behalf of the
defendant. The defendant claims that,
because his wife was not advised at the time of her appearance before the grand jury of her statutory privilege not
to testify against her husband, see G.L. c. 233, § 20. Second, the prosecution should have been
precluded from using that testimony for impeachment purposes at trial. The defendant also attacks the prosecutor's
use of the grand jury minutes on the ground that his wife's statements were
founded in part on private conversations with the defendant, in violation of
the disqualification created by G.L. c. 233, § 20, First. (FN29)
[391 Mass. 190] [16][17] We find neither argument persuasive. Even if the failure to apprise the
defendant's wife of the spousal privilege before she testified to the grand
jury was error, the defendant has no standing to contest an alleged
infringement of a privilege he could not have exercised. See
Commonwealth v. Stokes, 374 Mass. 583, 595, 374 N.E.2d 87 (1978). The defendant, who would have been precluded
from challenging a failure adequately to advise his wife of the spousal
privilege before she gave direct testimony adverse to him at trial, Commonwealth v. Stokes, supra, cannot
improve his position by attacking impeachment evidence resulting from such an
omission at a prior proceeding. The
defendant does have standing to contest the use of testimony his wife was
incompetent to present under the G.L. c. 233, § 20, Second,
disqualification; however, no such
testimony appears in the grand jury minutes or in the portion thereof used by
the prosecutor in his cross‑examination of Cheryl Paszko. (FN30)
There was no [391 Mass. 191] error in the judge's decision to
permit impeachment of the defendant's wife with her grand jury testimony. (FN31)
[18] 8. The timing of the summations and
instructions. The defense rested at
approximately 3:15 P.M. on a Thursday afternoon. The defendant's request to recess until
Friday morning was denied by the judge, who noted that he did not want the jury
to begin deliberations on the case on a Friday afternoon. The defense counsel's closing argument began
at 4 P.M., and was followed by the prosecutor's summation, which began at 6:15
P.M. and ended shortly before 7 P.M. The
jury foreman spoke to the judge during a brief interval separating the two
arguments and advised the judge that a majority of the jurors were of the
opinion that "it would be easier if you gave us instructions tonight, for
us to deal with it." The judge
charged the jury from 8:35 P.M. until 10:10 P.M., then recessed until the
following morning.
The defendant
submits that the judge's refusal of his request to postpone closing arguments
and the jury charge until Friday morning constituted prejudicial error. We agree that it would have been better
practice for the judge, at the end of a seven‑week trial, to defer
closing arguments and instructions until the next day instead of keeping the
jury into [391 Mass. 192] the night. A defendant is entitled to have summations
and instructions delivered at a time when the jurors are fresh enough to be
attentive and receptive to such critical information. However, we will not disturb a judge's
exercise of his discretion to grant or deny a motion to recess "unless
there is patent abuse of that discretion, which is to be determined in the
circumstances of each case." Commonwealth v. Bettencourt, 361 Mass.
515, 517‑518, 281 N.E.2d 220 (1972) (motion for continuance). See
Commonwealth v. Fleming, 360 Mass. 404, 409, 274 N.E.2d 809 (1971);
Commonwealth v. French, 357 Mass. 356, 405, 259 N.E.2d 195 (1970),
vacated as to death penalty sub nom.
Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754
(1972).
The judge
was in the best position to weigh the risk that the factfinding function of the
jury would be impaired if deliberations over the testimony of the many
witnesses and multiple exhibits did not commence until the eve of a weekend,
and to determine whether that risk warranted the presentation of closing
arguments and instructions on Thursday afternoon and night. In light of the foreman's assertion of the
jurors' belief that their comprehension of the case would be facilitated if
they were so instructed on Thursday night, we cannot say that the judge's
decision resulted in the presentation of summations and instructions to a
reluctant or exhausted jury, or that the defendant was deprived of his right to
a clear presentation of his case and understandable jury instructions. We conclude that the decision to deny the
defendant's motion to recess was not a patent abuse of the judge's discretion.
9. Relief pursuant to G.L. c. 278, § 33E. Consistent with our duty under § 33E, we
have considered the entire case on the law and the evidence and conclude that
the verdict on the indictment for murder in the first degree was neither
against the law nor against the weight of the evidence, and that the interests
of justice do not require either a new trial or entry of a verdict of a lesser
degree of guilt.
Judgment affirmed.
[391
Mass. 193] APPENDIX
A‑1. The defendant filed a motion to dismiss the
indictment after it was established that a woman, who told the police that she
had overheard a conversation in which the defendant admitted killing the
victim, had lied. Although the woman did
not testify before the grand jury, a detective who did testify referred to her
allegation. The detective advised the
grand jury that another party to the conversation during which the purported
admission was made had stated that the woman "was only telling half the
truth," and that the woman herself admitted that her story was exaggerated
and embellished.
The
defendant does not allege that the detective knew the hearsay testimony to be
false at the time it was presented. Cf. Commonwealth v. Salman, 387 Mass. 160,
166, 439 N.E.2d 245 (1982) (knowing use of false testimony to procure indictment
constitutes ground for dismissal). The
grand jury was alerted that the veracity of the woman's allegation was
disputed. Other evidence linking the
defendant to the crime was offered in the course of the detective's testimony
and the testimony of twelve other witnesses appearing before the grand
jury. The defendant had not met his
burden of demonstrating that "the integrity of the grand jury process has
been impaired." Commonwealth v. Salman, supra at 166,
439 N.E.2d 245. The motion to dismiss
the indictment was properly denied.
A‑2. The judge did not abuse his discretion in
denying the defendant's motion for a change of venue due to pretrial
publicity. Although the defendant's
status as a suspect, his arrest in New York, and his conviction of two
unrelated offenses in the summer of 1980 were the subject of a great many
articles appearing in several newspapers of general circulation in the
Northampton area, "it is not necessary in the interests of a fair trial
that all citizens who have read of or been interested in a crime be excluded
from the jury or that the trial take place where few such citizens will be
found." Commonwealth v. Blackburn, 354 Mass.
200, 204, 237 N.E.2d 35 (1968). The
record is devoid of "any indications in the totality of circumstances that
[the defendant's] trial was not fundamentally fair." Murphy v. Florida, 421
U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). The trial occurred ten months after the
crime. The venire included fourteen potential
jurors who knew nothing of the crime, another sixteen who remembered hearing
about the crime but could recall no details, and twelve who recalled only minor
details about the location of the crime or the occupation of the victim. Of the sixteen jurors selected from the
venire, four had no exposure to pretrial publicity, six recalled no details of
the crime, and six recalled some details relating to the crime, but knew
nothing about the defendant. The judge conducted
an individual voir dire of every prospective juror. Each of the selected jurors who had been
exposed to pretrial publicity stated that he or she could nonetheless render a
fair and impartial verdict. The defendant
expressed his approval of every juror seated.
The judge granted a motion by [391
Mass. 194] the Commonwealth to close
pretrial hearings to the press and the public in order to avoid additional
prejudicial publicity. Although some of
the articles, reporting the defendant's prior criminal activities, including a
breaking and entering into a drug store in Chicopee, "might well have been
prejudicial if read and remembered by members of the jury, the [defendant] has
failed to establish this to be a fact." Delle Chiaie v. Commonwealth, 367 Mass.
527, 532, 327 N.E.2d 696 (1975).
A‑3. The defendant alleges in his brief that a
mistrial should have been declared because of prejudicial publicity during the
trial. The judge permitted a television
camera to televise the trial, but required that the camera be positioned so as
to preclude a full frontal view of the defendant. After the trial had commenced, the defendant
noted the potential effect upon the upcoming testimony of witnesses Curtin,
O'Leary, and Washington of the prior evening's television broadcast, in which
the defendant was featured, and of a photograph of the defendant that had
appeared in a Springfield newspaper the day before. The defendant did not, however, request a
voir dire to establish any potential effect of such publicity on the testimony
of the identification witnesses.
Moreover, O'Leary and Washington testified only to out‑of‑court
identifications that took place prior to the allegedly prejudicial
publicity. Curtin, who did make an in‑court
identification of the defendant, said on cross‑examination that he had
seen neither the television coverage nor the newspaper photograph of the
defendant that defense counsel brought to the judge's attention. The defendant failed to establish any
prejudice. There was no error.
A‑4. The judge did not abuse his discretion in
admitting in evidence two color photographs of the victim taken at the
autopsy. One photograph, depicting a
metal probe inserted into and protruding from the entrance wound, demonstrated the
trajectory of the bullet that killed the victim. The trajectory of the bullet, which entered
the victim's right ear and proceeded in a downward and forward direction, was
material to the prosecution's theory of premeditated murder. See
Commonwealth v. Clark, 363 Mass. 467, 472, 295 N.E.2d 163 (1973). The other photograph demonstrated the size of
the bullet wound. The pathologist, who
testified for the prosecution that the cause of death was a .22 caliber bullet
wound, was cross‑examined as to his ability to distinguish such a wound
from one caused by a bullet of larger caliber, and testified that the size of
the wound was inconsistent with a caliber larger than .25. Both photographs could "aid the jury, as
lay people, in making a finding of fact on a contested point."
Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984
(1980). Although the area surrounding
the entrance wound was bloody, in part due to post‑mortem examination,
this was not a case "where the evidential value of the photographs which
went to the jury was overwhelmed by the prejudicial effect."
Commonwealth v. Richmond, 371 Mass. 563, 565, 358 N.E.2d 999
(1976). Cf. Commonwealth v. Bastarache, supra 382 Mass. at 105‑106, 414
N.E.2d 984 (autopsy photographs of victim's brain and skull interior after
brain removed); Commonwealth[391 Mass. 195] v. Richmond, supra (photograph of
injuries caused by dog who chewed victim's face sometime after victim's death).
A‑5. The Commonwealth was permitted to introduce
in evidence a variety of drugs found in the defendant's automobile when he was
arrested in New York. The defendant
argues that, because the drugs could not be identified as coming from
Merrigan's Pharmacy, they should have been excluded on the ground that their
prejudicial effect outweighed their probative value. See
Commonwealth v. D'Agostino, 344 Mass. 276, 279, 182 N.E.2d 133 (1962). Although no identifying marks were found on
the seized containers (there was evidence that the defendant had removed
identifying labels prior to the arrest), the drugs had probative value. Some of the drugs corresponded to those
determined to be missing from Merrigan's by an inventory conducted after the
shooting. Cf. Commonwealth v. Locke, 335 Mass. 106, 113‑114, 138 N.E.2d
359 (1956) (bills of same denominations as those stolen admitted in evidence). The evidence thus had "a rational
tendency to prove" the prosecution's theory that the defendant shot the
victim in the course of a drug‑related robbery. Commonwealth v. Durkin, 257
Mass. 426, 427‑428, 154 N.E. 185 (1926).
That other drugs found in the automobile were not established to be
missing from Merrigan's "affect[ed] the weight rather than the
admissibility of that evidence." Commonwealth v. Berth, 385 Mass. 784,
791, 434 N.E.2d 192 (1982). It may be
conceded that evidence that a defendant possessed large quantities of
controlled substances could prejudice the jury against that defendant. In the circumstances of this trial, in which
there was recurring evidence of the defendant's use of drugs, there is little
likelihood, however, that any incremental prejudice was occasioned by the
jury's exposure to the drugs found in the defendant's vehicle. The judge did not abuse his discretion in
admitting the evidence.
The
defendant also argues that, because possession of controlled substances is a
criminal offense unrelated to the crime for which the defendant was being
prosecuted, by admitting the drugs the judge improperly permitted the
prosecution to present to the jury evidence of prior criminal acts by the
defendant. The short answer to this
contention is that "[t]he fact that evidence otherwise relevant and
material may indicate that the defendant committed another crime does not make
it inadmissible." Commonwealth v. Caine, 366 Mass. 366, 370‑371,
318 N.E.2d 901 (1974).
A‑6. Richard Paszko's failure to identify
positively the pistol in evidence as being the pistol that disappeared from his
house after the defendant and his wife lived there went to the weight of
Richard Paszko's testimony, not to its admissibility. See
Commonwealth v. Grant, 352 Mass. 434, 438, 226 N.E.2d 197 (1967). That the jury may have inferred from the
testimony a prior criminal act by the defendant, namely, theft of the gun, did
not require that the testimony be excluded where, as here, it was probative of
the defendant's access to the weapon with which the victim was shot.
Commonwealth v. Caine, supra.
There was no error in the judge's determination that Richard Paszko's
testimony was admissible or in the judge's
[391 Mass. 196] denial of the
defendant's motion for mistrial based on the prosecution's reference in its
opening statement to the anticipated testimony of Richard Paszko.
Commonwealth v. Hartford, 346 Mass. 482, 486, 194 N.E.2d 401 (1963).
A‑7. The defendant, alleging that the prosecution
failed to establish a chain of custody, objected to the admission of a shell
casing that, according to the prosecution, was found at Merrigan's. The letter "F" was imprinted on the
shell casing introduced in evidence. The
Commonwealth's ballistics expert testified that he received the casing from a
police detective, who testified that he obtained the casing from the officer
who found it at Merrigan's. The officer
who found the casing was asked on cross‑examination whether he had seen
the letter on the casing and responded:
"I don't recall it. I
believe it was probably a 'U'. And I
can't say for sure." The officer's
uncertainty about the marking on the casing did not render the item
inadmissible. "Any weaknesses which
might exist in the chain of custody affect only the weight of the evidence, not
its admissibility." Commonwealth v. Hoffer, 375 Mass. 369,
377, 377 N.E.2d 685 (1978).
A‑8. The defendant alleges error in the judge's
refusal to permit the impeachment of Toni Federman and the Commonwealth's ballistics
expert through testimony by the defendant's investigator about prior
inconsistent statements made to him by the two witnesses. The defendant made an offer of proof that the
investigator would testify that Federman "told him that she was pretty sure
that [the defendant] might have had a scar on his forehead" on June 6,
1980. Federman, who initially testified
on cross‑examination that she did not recall whether the defendant had a
scar on that date, was later asked about her statement to the investigator and
responded, "I don't deny that's what I said." The judge was under no obligation to permit
repetitious impeachment through another witness.
The
defendant also made an offer of proof that the investigator would testify that
the Commonwealth's ballistics expert had told him that he first saw the weapon
in evidence "for test purposes" on October 28, 1980. On direct examination the expert stated that
he had seen the weapon for one half‑hour on October 22 or 23, but did not
take custody of it then because it was needed for fingerprinting tests. The judge acted within his discretion in
excluding the investigator's testimony, whether the basis of his decision was
that the statement to the investigator was not inconsistent with the expert's
direct testimony, that the issue was collateral, or that the defense should not
be permitted to impeach a witness without the witness being present to explain
the alleged inconsistency. See Commonwealth v. Berth, 385 Mass. 784,
790, 434 N.E.2d 192 (1982); Commonwealth v. West, 312 Mass. 438, 440,
45 N.E.2d 260 (1942).
The
defendant also alleges error in the judge's decision to preclude impeachment of
O'Leary, Curtin, and Washington through the introduction, after the witnesses
had left the stand, of excerpts from the transcripts of their voir dire
testimony. The three identification
witnesses were thoroughly cross‑examined.
The defense attorney used his notes of the witnesses' [391 Mass. 197] voir dire testimony in the course of his cross‑examination. There was no error in the judge's
determination that further impeachment through the transcript after the
witnesses had been excused was unnecessary.
See Commonwealth v. Berth, supra.
A‑9. In his instructions on consciousness of
guilt, the judge told the jurors that they could consider, as evidence of a
guilty mind, "those portions of the evidence where it is alleged that the Defendant failed
to surrender himself or fled from the area, or disposed of incriminating
evidence or changed his address."
The defendant asserts that the reference to his failure to surrender
himself improperly burdened him with an affirmative obligation to surrender to
the police and thereby compromised his privilege against self‑incrimination. The instructions as a whole created no such
burden. The judge cautioned the jurors
to be careful in drawing from the fact of nonsurrender an inference adverse to
the defendant, "because situations might occur in which innocent persons
... may forget that the surest refuge of innocence is the truth, and may
attempt to secure their safety by hiding or refusing to surrender." Moreover, the privilege against self‑incrimination
is not implicated by the evidentiary use of nontestimonial acts or omissions by
the defendant. See Commonwealth v. Brennan, 386 Mass. 772, 776, 438 N.E.2d 60 (1982).
A‑10. There was no error in the judge's refusal to
instruct the jury on self‑defense, manslaughter, or accident. See
Commonwealth v. Evans, 390 Mass. 144, 151, 454 N.E.2d 458 (1983).
A‑11. The defendant requested that the jury be
instructed to return a verdict no greater than murder in the second degree if
the jurors found that the defendant was under the influence of alcohol or drugs
at the time the shooting occurred. The
judge instructed the jury that the defendant could not be found guilty of
murder in the first degree under a premeditation theory if, as a result of
voluntary drug addiction, he was so intoxicated that he was mentally incapable
of deliberate premeditation. The
defendant claims error in the judge's refusal to instruct the jury that
voluntary intoxication would also mitigate murder in the first degree under the
felony‑murder theory. We have
repeatedly declined to rule that consumption of or addiction to alcohol or
drugs warrants a finding of absence of specific criminal intent, Commonwealth v. Loretta, 386 Mass. 794,
800, 438 N.E.2d 56 (1982), Commonwealth
v. Sheehan, 376 Mass. 765, 772‑776, 383 N.E.2d 1115 (1978), Commonwealth v. Johnson, 374 Mass. 453,
462‑465, 373 N.E.2d 1121 (1978), Commonwealth
v. Stewart, 359 Mass. 671, 679, 270 N.E.2d 811 (1971), judgment vacated per
curiam as to death penalty, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972),
and have indicated that we would consider doing so "only where ... a clear
indication of the influence of drugs on the defendant's state of mind," Commonwealth v. Sheehan, supra 376
Mass. at 775, 383 N.E.2d 1115, is provided by expert testimony, Commonwealth v. Loretta, supra 386
Mass. at 800, 438 N.E.2d 56. No such
evidence was presented in this case. The
judge properly refused to give the requested instruction.
(FN1.) In the appendix, there is a brief
discussion of the many other issues.
(FN2.)
Other facts will be described in the context of the discussion of particular
issues raised on appeal.
(FN3.)
General Laws c. 94C, § 3, as amended by St.1972, c. 806, § 8, defines Schedule
II drugs as follows:
"(A)
The drug or other substance has a high potential for abuse.
"(B)
The drug or other substance has a currently accepted medical use in treatment
in the United States or a currently accepted medical use with severe
restrictions.
"(C)
Abuse of the drug or other substances may lead to severe psychological or
physical dependence."
(FN4.) The judge's denials of the defendant's
motions for a required finding of not guilty are not contested on appeal. We deem the issue waived. See
Commonwealth v. Cundriff, 382 Mass. 137, 151 n. 22, 415 N.E.2d 172 (1980),
cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). Mass.R.A.P. 16(a)(4), as amended, 367 Mass.
919 (1975). We add that the evidence
implicating the defendant was overwhelming.
(FN5.) The stranger's physical appearance and
attire, as described by O'Leary, Curtin, and Washington, was in most aspects
identical to that of the defendant, as described by witnesses who saw him
during the days immediately preceding the shooting.
Hospital
records indicating that the defendant was treated for a head laceration on May
31, 1980, were introduced at trial.
Witnesses differed whether scars and stitches were visible on the
defendant's forehead, around the time of the shooting. O'Leary, Curtin, and Washington did not
recall seeing any markings on the stranger's forehead.
(FN6.) There are minor inaccuracies in the
description of the photographic arrays contained in the judge's written
findings. Since nothing turns on the
judge's description of the pictures, we describe the arrays (which are before
us as exhibits) without regard to the judge's inaccurate description.
(FN7.) There was conflicting evidence both at
the suppression hearing and at trial with respect to whether O'Leary and Curtin
were shown two or three photographic arrays, and with respect to whether
O'Leary selected a photograph of the defendant at the initial array. The judge's resolution of the discrepant
testimony on these issues is not clearly erroneous, and we therefore accept his
findings for purposes of review. Commonwealth v. Day, 387 Mass. 915, 919,
444 N.E.2d 384 (1983).
(FN8.)
The defendant argues that O'Leary's and Washington's out‑of‑court
identifications were inadmissible hearsay because neither witness made an in‑court
identification. This contention is
meritless. An out‑of‑court
identification is admissible as substantive evidence even if the witness does
not identify the defendant in court, provided the defendant's due process and
confrontation rights are observed. Commonwealth v. Torres, 367 Mass. 737,
739, 327 N.E.2d 871 (1975). See Commonwealth v. Repoza, 382 Mass. 119,
130 n. 5, 414 N.E.2d 591 (1980); Commonwealth v. Fitzgerald, 376 Mass.
402, 408, 381 N.E.2d 123 (1978).
O'Leary's and Washington's out‑of‑court identifications were
not the product of an impermissibly suggestive procedure, see supra at 226, and both witnesses were
available at trial to be cross‑examined as to their identifications. Cf.
Commonwealth v. Furtick, 386 Mass. 477, 481 n. 2, 436 N.E.2d 396 (1982).
(FN9.) The trial judge also made detailed
findings with respect to the witnesses' capacity to observe and recall the
features of the man they saw on June 8, 1980.
These findings are relevant to the "reliability" test
enunciated in Neil v. Biggers, 409
U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), and reaffirmed in Manson v. Brathwaite, 432 U.S. 98, 114,
97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
Although we have encouraged trial judges to make findings with reference
to reliability, Commonwealth v. Venios,
378 Mass. 24, 28, 389 N.E.2d 395 (1979), and have indicated that we might
follow that test, see Commonwealth v.
Cincotta, 379 Mass. 391, 396, 398 N.E.2d 478 (1979), we have not yet
explicitly adopted the Biggers‑Manson
standard. See Commonwealth v. Correia, 381 Mass. 65, 81, 407 N.E.2d 1216
(1980). Because, after independent
review, we uphold the trial judge's conclusion that the photographic arrays
were not impermissibly suggestive, we again leave the decision of the
applicability of the reliability test in this Commonwealth for another day.
(FN10.) The defendant argues that "this
Court should adopt the rule, prophylactic in nature, requiring a reversal when
a voir dire is held after the jury has been exposed to [potentially
involuntary] statements." We agree
with the defendant that, as a general rule, a judge should not admit
potentially involuntary statements in evidence prior to a voir dire. In this case, where the contested statements
were made to out‑of‑State cellmates, whose availability to testify
was limited, rather than to police, we uphold the judge's decision to permit
the testimony in advance of the voluntariness voir dire. The judge's finding that the statements were
voluntary negates any prejudice to the defendant as a result of the unorthodox
procedure. Jackson v. Denno, 378 U.S. 368, 394, 84
S.Ct. 1774, 1790, 12 L.Ed.2d 908 (1964). Commonwealth v. Brady, 380 Mass. 44, 52‑53,
410 N.E.2d 695 (1980). We emphasize,
however, that only in exceptional circumstances, present here, should witnesses
be permitted to testify before the jury in advance of a judicial determination
of the voluntariness of the defendant's statements.
(FN11.) The detective stated that, when he
first saw the defendant on June 19, the defendant was speaking incoherently but
that he had "settled down somewhat" by the time of the interview. The defendant denied killing anyone and
stated that, at the time he was arrested, he was returning to Massachusetts to
"straighten things out." The
interview terminated when the defendant asked for a lawyer. The defendant's statements at the interview
were not encompassed in the motion to suppress.
(FN12.) Tomes described the defendant as
"fidgeting" and "nervous."
Raynor testified that the defendant was shaking at the time he was put
in the cell, fell off his bunkbed during the night, and yelled a lot during the
morning. Officer Richard Lavalle, who
came to New York on June 20 to make arrangements to return the defendant to
Massachusetts, stated that when he saw the defendant, he appeared "very
confused" and disoriented, and that he was advised by a sergeant at the
jail not to transport the defendant on the twentieth, because the defendant was
"in bad shape" and "very violent, paranoid, and in
withdrawal."
(FN13.)
Raynor said that, on the morning of June 20, the defendant repeatedly asked for
a doctor, that when a doctor came, the defendant requested drugs "for the
pain," and that the doctor gave the defendant some medication to be
applied to the defendant's sores, but did not dispense any drugs for the
withdrawal symptoms. The defendant asked
that he be placed in a hospital for detoxication, and said that he wanted
"help to get me out of the hole, to get some treatment."
(FN14.) We took note in Fielding of testimony indicating that the will to resist making
incriminating statements during drug withdrawal "varies from person to
person" and that "subjects withdrawing from heroin do not lose the
capacity for rational thought and choice."
371 Mass. 97, 111 n. 19, 353 N.E.2d 719 (1976).
(FN15.) There is no Supreme Court precedent,
or generally accepted Federal practice, from which we could conclude that,
absent governmental complicity, the defendant's statements to private citizens
may be held involuntary under the Federal due process clause as applied to the
States by the Fourteenth Amendment. But
see United States v. Bernett, 495 F.2d
943, 947, 970 (D.C.Cir.1974); United States v. Robinson, 439 F.2d 553,
561 n. 8 (D.C.Cir.1970). We reject the
defendant's contention that the police's "placement of the defendant in a
cell with others when he was in a visibly disoriented state" constitutes
State action to which the defendant's damaging statements may be traced; it would be mischievous to hold the due
process clause applicable to the defendant's statements because the police did
not place him in solitary confinement.
Although the deterrence of illicit conduct producing involuntary
statements is a factor in the exclusion of such statements, see, e.g., United States v. Bernett, supra at 951
(Robinson, J., dissenting in part), that objective is not implicated where
neither the police nor the defendant's cellmates contributed to the defendant's
condition.
(FN16.) There was evidence that the defendant
had discussed the crime on prior occasions.
One acquaintance of the defendant stated that on June 6, 1980, the
defendant asked him whether he wanted to assist the defendant in robbing a
drugstore. On that occasion, the
defendant stated that he intended to "leave no witnesses."
(FN17.) The defendant also claims that a
mistrial was required after defense counsel, on cross‑examination,
elicited from Kenneth Raynor a statement that the defendant had told Raynor
that the defendant "did time in Walpole." The judge struck the response and instructed
the jury to disregard the statement. Any
prejudice to the defendant was further dispelled by a stipulation read to the
jury and referred to in the defendant's closing argument that "at no time
prior to June 20, 1980 [when the defendant spoke to Raynor] was [Paszko]
confined or sentenced to Walpole State Prison." There was no error in the denial of the
motion for mistrial. See Commonwealth v. Chubbuck, 384 Mass.
746, 429 N.E.2d 1002 (1981); Commonwealth v. Lacy, 371 Mass. 363, 365,
358 N.E.2d 419 (1976).
There
is likewise no merit in the defendant's allegation that the testimony of
Richard Grace required a mistrial. Grace
stated that he drove the defendant from Chicopee to Holyoke two days before the
shooting. According to Grace, the
defendant stated that he "had to leave town." Asked by the prosecutor whether the
defendant had said "anything further," Grace responded, "All he
said, he had a warrant out for his arrest." The defendant objected; the judge immediately struck the answer and
instructed the jury to disregard Grace's response. The judge did not abuse his discretion in
denying a mistrial. See Commonwealth v. Chubbuck, supra;
Commonwealth v. Lacy, supra.
(FN18.) The "humane practice" is
only applicable where there is a "live issue" with regard to the
voluntariness of a statement. Commonwealth v. Brady, 380 Mass. 44, 54,
410 N.E.2d 695 (1980). The Commonwealth
concedes the existence of a live issue of voluntariness at trial.
(FN19.) It is undisputed that the defendant's
statements are admissions, not confessions.
See Commonwealth v. Haywood,
247 Mass. 16, 18, 141 N.E. 571 (1923).
(FN20.)
In Commonwealth v. Vazquez, 387 Mass.
96, 438 N.E.2d 856 (1982), we reversed a conviction at a trial apparently
conducted before our decision in
Commonwealth v. Tavares, supra, because of the trial judge's failure to
instruct the jury to consider the voluntariness of admissions made by the
defendant to police officers. Noting
that the statements were critical both on the issue of the defendant's guilt
and with regard to his criminal responsibility, we concluded that the failure
to instruct the jury created a substantial risk of a miscarriage of justice and
reversed pursuant to G.L. c. 278, § 33E.
The issue of Tavares'
retroactivity was not before us in
Vazquez, however, and we did not decide it.
(FN21.) The constitutional requirement that a
judge determine the voluntariness of a statement before admitting it in
evidence was imposed in Jackson v. Denno,
supra, which involved a confession.
We have found no subsequent Supreme Court or other Federal court
decision holding the Jackson v. Denno
requirements applicable to admissions.
Nevertheless, we believe that such hearings should be held to avoid
constitutional attacks on convictions.
We
note that the trial judge, perhaps out of an abundance of caution, conducted a
hearing in compliance with Jackson v.
Denno, and determined that the defendant's statements were voluntary. This "initial screening by the judge is
the 'basic determination safeguarding the accused.' " Commonwealth v. Tavares, supra
385 Mass. at 152, 430 N.E.2d 1198, quoting
Clifton v. United States, 371 F.2d 354, 362 (D.C.Cir.1966) (Leventhal, J.,
concurring), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967).
(FN22.) In response to a question submitted by
the jury during deliberation, the judge gave an instruction that, if the jurors
found that the defendant was intoxicated when he made his admission, they could
"accept such an admission fully ... disregard it entirely, or ... give it
such weight as you feel it deserves under the circumstances as you find them." Since this instruction neither focused on
the potential effects of the defendant's drug withdrawal nor alerted the jury
that they must disregard any
admission they found involuntary, it would be insufficient to discharge the
judge's duty under the humane practice.
Because we conclude that the judge was under no obligation to instruct
on voluntariness, however, the defendant suffered no prejudice from this
instruction.
(FN23.) The seizure of these items is not at
issue.
(FN24.) At the suppression hearing, the
defendant denied ownership of the denim jacket.
There was, however, ample evidence that the jacket was removed from the
motel room which the defendant had rented.
See Commonwealth v. Franklin,
376 Mass. 885, 900, 385 N.E.2d 227 (1978).
If the defendant had a reasonable expectation of privacy in the motel
room, see Katz v. United States, 389
U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), he had standing to challenge the
introduction in evidence of an item seized as a result of an illicit search of
that room.
(FN25.) A police officer cannot, of course,
circumvent Fourth Amendment restrictions by leaving behind items discovered
during an unlawful search, and then using his knowledge of the existence of
those items to request a private person who would not otherwise have done so to
recover the items. In cases where the
police acquire knowledge of the existence of evidence through an unlawful
search preceding the discovery of the evidence by another party, the prosecution
bears a heavy burden to establish the independent nature of the recovery of the
evidence. Assuming arguendo that the
officer's search of the room was unlawful, the Commonwealth met its burden of
establishing that the acquisition of the evidence was independent of the
officer's search.
(FN26.) The defendant's claim that discovery
was improper because there was no discovery order in effect is without
merit. The judge took no action when the
prosecution filed its motion for reciprocal discovery because at the time the
defense represented to the judge that it had no discoverable material. The judge implicitly granted the motion by
ordering production when it became apparent that the defense was in possession
of discoverable matter.
(FN27.)
The ballistics expert and the investigator both testified at trial. Their signed reports were discoverable
statements under Mass.R.Crim.P. 14(d)(1), 378 Mass. 874 (1979), and
Mass.R.Crim.P. 23(a) and (e), 378 Mass. 893 (1979). Discovery of Leo St. Lawrence's statements,
contained in the investigator's report, was also appropriate under
Mass.R.Crim.P. 14(a)(2), and Mass.R.Crim.P. 23(a)(4) and 23(e), 378 Mass. 893
(1979).
(FN28.) Under Federal law, such statements are
protected by a qualified privilege,
United States v. Nobles, supra at 239, 95 S.Ct. at 2170, surmountable upon
a showing of necessity. See Hickman v. Taylor, 329 U.S. 495, 511‑512,
67 S.Ct. 385, 393‑394, 91 L.Ed. 451 (1947). Mass.R.Crim.P. 14 dispenses with this
presumptive protection.
(FN29.) We intimate no opinion whether the
spousal privilege may be invoked during a grand jury investigation. We note, however, that whereas the spousal
disqualification is applicable at "any proceeding civil or criminal,"
G.L. c. 233, § 20, First, as amended through St.1963, c. 765, § 3, the spousal
privilege is available "in the trial
of an indictment, complaint or other criminal proceeding against the other [spouse]" (emphasis supplied). G.L. c. 233, § 20, Second.
(FN30.) Much of Cheryl Paszko's grand jury
testimony concerned the June 8 ride to Brattleboro, Vermont, during which the
defendant's sister‑in‑law was present. Although Cheryl Paszko was asked what she and
her husband were "talking about" at another point when Federman may
not have been present, that question was not answered. Asked by a grand juror about a conversation
with her husband on a certain matter, Cheryl Paszko answered that she had not
spoken to her husband about that subject.
The witness did not answer a question whether the defendant had
discussed Federman with her. Although,
in response to one question, Cheryl Paszko said that the defendant had told her
he wanted to go to Toledo, the record does not indicate whether the defendant
and his wife were alone when the defendant made that statement. Thus, the defendant has not shown that the
statement was made in a private conversation.
Even if the information was acquired during a private conversation, the
answer to the one question was not prejudicial to the defendant and does not so
undermine the public policy protecting the marital relationship as to require a
new trial. All other questions directed
to Cheryl Paszko at the grand jury concerned conversations with the defendant
that occurred in the presence of third parties, and hence are beyond the scope
of the prohibition of G.L. c. 233, § 20, Second. See
Commonwealth v. Wakelin, 230 Mass. 567, 574, 120 N.E. 209 (1918); P.J. Liacos, Massachusetts Evidence 179‑180
(5th ed. 1981).
(FN31.) Because we find unmeritorious the
defendant's claim that his wife's grand jury testimony was obtained in
violation of G.L. c. 233, § 20, we do not reach the Commonwealth's argument
that testimony produced in violation of the statutory spousal privilege or
disqualification should be admissible for impeachment purposes. Cf.
Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971);
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975);
Commonwealth v. Mahnke, 368 Mass. 662, 697, 335 N.E.2d 660 (1975)
(exclusionary rule inapplicable to impeachment use of voluntary testimony
obtained in violation of constitutional rights).
It
also follows from our conclusion that there was no error in the judge's
rejection of the defendant's request that the indictment be dismissed because
of the possibility that the grand jury was influenced by testimony violative of
G.L. c. 233, § 20. Our inquiry into the
defendant's wife's grand jury testimony is necessitated by the defendant's
challenges to the use of that testimony at trial. We need not decide whether an exception to
the general rule that we "will not inquire into the competency ... of the
evidence before the grand jury,"
Commonwealth v. Galvin, 323 Mass. 205, 211‑212, 80 N.E.2d 825 (1948),
should be carved out for indictments alleged to be based on testimony violative
of G.L. c. 233, § 20.