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Opinions of The and the Court of Appeals To be used in
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Commonwealth v. Podlaski, 377
Supreme Judicial Court of Massachusetts,
Argued
Decided
Daniel J. O'Connell, III,
William J. Doyle, Asst. Dist. Atty., for
Commonwealth.
Before [377
WILKINS, Justice.
We affirm
the defendant's conviction of murder in the first degree and conclude that
justice does not require the entry of a verdict of a lesser degree of guilt
under G.L. c. 278, s 33E. The
defendant's principal contention is that the evidence did not warrant
submitting the case to the jury on the issue of murder in the first degree.
We
summarize the evidence against the defendant.
Shortly after
Mrs.
Peltz, who lived at the corner of Woodward and Leeds Streets, was also awakened
by noise shortly after
About
The house
appeared to be abandoned. The rooms were
in general disarray, littered with empty beer cans, wine bottles, and whiskey
bottles. The police found no bloodstains
in the house.
At the
South Boston police station, Officer Zweihorn first noticed what appeared to be
blood on the defendant's [377 Mass.
342] pants. Later, the defendant tried to wash his pants
in the toilet bowl in his cell. Tests
showed traces of human blood on the pants, on the soles of both shoes, and on
the toe of the right shoe.
The victim
died as the result of fractures of the ribs and a rupture of the vena cava, the
large vein that carries blood from the head to the aorta. The medical examiner concluded that the
victim could have lived for five to fifteen minutes after the rupture. The rupture had to have been caused by a
"terrific belt." The victim
was dead on arrival at Boston City Hospital.
([FN2])
The only
evidence offered by the defense was the testimony of a psychiatrist who
examined the defendant six days after the victim's death. He concluded that the defendant was then suffering
from delirium tremens or alcohol withdrawal syndrome, a condition that usually
starts forty‑eight to seventy‑two hours after one who has been
drinking consistently to the point of inebriation for several years suddenly
stops drinking. ([FN3])
1. Admissibility of Defendant's Statement.
[1][2] The
judge properly denied the defendant's motion to suppress his statement to
Officer Zweihorn that "he had to do (the victim) in, give it to him, and
had to do him in because he called him, called him and his mother a mother
fucker." The defendant contends this statement should [377 Mass. 343] have been suppressed because he was in custody at the time and
had not been given Miranda warnings.
([FN4])
The short
answer to the defendant's argument that Miranda warnings should have been given
is that, when he made the statement, he was not "in custody . . . or otherwise deprived of his freedom of
action in any significant way."
Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d
694 (1966). The questioning by Officer
Zweihorn was a proper preliminary inquiry not requiring Miranda warnings. See Commonwealth v. Borodine, 371 Mass. 1, 4‑5,
353 N.E.2d 649, 652 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50
L.Ed.2d 765 (1977); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50
L.Ed.2d 714 (1977). The fact that the
officer would not let the defendant leave until he had talked to him did not
make the interrogation custodial. No
suspicion had even focused on the defendant.
"The questions were preliminary, directed to discovering . . . what he knew about the
circumstances." Commonwealth v.
Borodine, supra. Unlike the situation in
Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), the
officers did not question the defendant about incriminating facts without first
informing him of his rights. Nor was
this an overbearing, noncustodial interrogation. See Beckwith v. United States, 425 U.S. 341,
347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976).
Before the defendant made his statement, Officer Zweihorn asked him only
his name and whether he knew anything about the man who had been lying in the
street.
2. Sufficiency of the Evidence.
[3] The
defendant next argues that the evidence was insufficient to warrant a finding
of guilty of murder in the first degree.
Although he does not explicitly so state in his [377 Mass. 344] brief,
we assume from his assignments of error that he bases this objection solely on
the denial of his motion for a directed verdict "on so much of the indictment
that alleges murder." In that form,
the motion should have been denied if the evidence warranted a finding of
murder in the second degree. The judge,
however, was willing to treat the motion as including a request for a directed
verdict on so much of the indictment as alleged murder in the first degree, and
we shall do so as well.
[4][5][6]
The defendant argues that the case should not have been submitted to the jury
on either the theory of deliberately premeditated murder or the theory of murder
with extreme atrocity or cruelty. The
motion for a directed verdict should have been denied unless the defendant was
correct on both aspects of his argument.
([FN5]) Consequently, we need not
reach all the defendant's contentions if there was any basis on which the case
properly went to the jury concerning the defendant's guilt of murder in the
first degree. However, because the
ultimate result is not affected in any way and because, in any event, we must
give some consideration to each issue in performing our duty under G.L. c. 278,
s 33E, we shall treat the defendant's argument as properly directed toward each
theory of murder in the first degree. In
the same fashion, and for the same reasons, we shall consider the propriety of
the submission of the case to the jury on the theory of joint
venture. ([FN6])
[377 Mass. 345] The principal thrust of the defendant's argument is that there
was no evidence that he caused the victim's death and no evidence that he
participated in the killing as a joint venturer. He argues that there was no direct evidence
he struck the victim and that the fatal blow must have been struck by someone
else while the victim was lying in the street.
The evidence shows, he claims, only that he was present during the
commission of the crime (see Commonwealth v. Clark, 363 Mass. 467, 473, 295
N.E.2d 163 (1973); Commonwealth v. Benders, 361 Mass. 704, 708, 282 N.E.2d 405
(1972)) and not that he aided, assisted, or encouraged the others during its
commission (see Commonwealth v. Ambers, 370 Mass. 835, 839, 352 N.E.2d 922
(1976); Commonwealth v. Perry, 357 Mass. 149, 151, 256 N.E.2d 745 (1970)).
The
evidence warranted the conclusion that the defendant was not merely an innocent
bystander, but was guilty either as a joint venturer or as a principal. See Commonwealth v. Scanlon, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNA]), 364 N.E.2d 1196 (1977); Commonwealth v. Britt, 358 Mass. 767, 769‑770,
267 N.E.2d 223 (1971). Moreover, the
evidence warranted such a finding on either of two theories of murder in the
first degree.
[7] a.
Premeditated murder. The case properly
went to the jury on the issue of deliberately premeditated murder. The defendant's statement, "I had to
give it to him. I had to do him
in," is sufficient to support a finding of premeditation by the defendant
himself. The nature of the injuries
sustained by the victim showed "a conscious and fixed purpose to kill
continuing for a length of time and warranted a finding of murder with
deliberately premeditated malice aforethought." Commonwealth v. [377 Mass. 346]
Satterfield, 362 Mass. 78, 82, 284 N.E.2d 216, 218 (1972), quoting from
Commonwealth v. Bonomi, 335 Mass. 327, 356, 140 N.E.2d 140 (1957). See Commonwealth v. Bartolini, 299 Mass. 503,
515, 13 N.E.2d 382, cert. denied, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531
(1938). Moreover, because there was
evidence to justify a finding that the assailants acted jointly, ([FN7]) the
words, "Kill him. Kill him,"
even if not uttered by the defendant, warranted a finding of premeditated
murder if the jury concluded that those words were uttered by one of the
assailants.
[8] The
question whether, due to intoxication, the defendant was not able to form a
deliberately premeditated intention to kill was properly submitted to the jury.
See Commonwealth v. Johnson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNB]), 373 N.E.2d 1121 (1978); Commonwealth v. Satterfield, supra. There was evidence from which the jury could
have concluded that the defendant was not too drunk to premeditate. Among that evidence was the defendant's
flight when Mrs. Peltz asked, "What are you doing?"; his changing his
shirt; his exit from the basement of the house after the police knocked on the
front door; and his conversation with the police.
[9][10] b.
Murder with extreme atrocity or cruelty.
The evidence also warranted submitting the case to the jury on the issue
of murder with extreme atrocity or cruelty.
The victim's extensive and serious injuries certainly warranted a
finding that whoever participated in the beating of the victim did so with
extreme atrocity or cruelty. See
Commonwealth v. Lacy, 371 Mass. 363, 368, 358 N.E.2d 419 (1976); Commonwealth
v. Satterfield, 362 Mass. 78, 81‑82, 284 N.E.2d 216 (1972); Commonwealth
v. McGarty, 323 Mass. 435, 440, 82 N.E.2d 603 (1948). For the
[377 Mass. 347] reasons already
indicated, there was evidence to warrant a finding that the defendant himself
inflicted the victim's injuries and, additionally or alternatively, a finding
that the defendant participated in a joint venture to inflict those
injuries. Intoxication is not a
mitigating factor in the case of murder with extreme atrocity or cruelty. Commonwealth v. Appleby, 358 Mass. 407, 415‑416,
265 N.E.2d 485 (1970).
[11][12][13][14][15]
c. Joint venture. We reject the defendant's
contention that a person cannot be guilty of murder with extreme atrocity or
cruelty by means of participation in a joint venture. To be guilty on a joint venture theory, a
defendant must share the intent of the principal (Commonwealth v. Scanlon, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNC]), 364 N.E.2d 1196
(1977)), but, as to this type of murder in the first degree, even the principal
need not have an intention to use atrocious or cruel means or indeed know that
the particular conduct constitutes atrocity or cruelty. See Commonwealth v. Golston, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FND]), 366 N.E.2d 744
(1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978);
Commonwealth v. Satterfield, 362 Mass. 78, 81, 284 N.E.2d 216 (1972);
Commonwealth v. Appleby, 358 Mass. 407, 415, 265 N.E.2d 485 (1970). There is, of course, as in any murder
conviction, a requirement of the proof of malice (Commonwealth v. Gilbert, 165
Mass. 45, 59, 42 N.E. 336 (1895)), that is, an intent to inflict an unlawful
injury (Commonwealth v. McInerney, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ([FNE]), 365 N.E.2d 815 (1977), and cases cited). A joint venturer need only intend that the
victim be killed or know that there is a substantial likelihood of the victim's
being killed. Commonwealth v. Scanlon, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNF]), 364 N.E.2d 1196
(1977). If the joint venturer has this
intent and participates in a killing accomplished by means of extreme atrocity
or cruelty, he is guilty of murder in the first degree. Consequently, the jury would have been
warranted in finding that the defendant was guilty of murder with extreme
atrocity or cruelty either by his own acts or by participating in a joint
venture to inflict injuries on the victim.
[377 Mass.
348] 3. Instructions on Murder with
Extreme Atrocity or Cruelty.
The judge
did not err in declining to give the defendant's requested instruction that in
determining the degree of atrocity or cruelty, "it is necessary to
consider the consciousness and degree of suffering of the victim." ([FN8])
At the conclusion of the jury charge, counsel for the defendant renewed
the subject in a somewhat different form by asking the judge to charge the jury
that they could not consider extreme atrocity or cruelty unless they found that
the victim was conscious during part of the suffering or beating.
[16]
Although there have been cases where the conscious suffering of the victim was considered significant (Commonwealth v.
Clifford, ‑‑‑ Mass. ‑‑‑, ‑‑‑
([FNG]), 372 N.E.2d 1267 (1978); Commonwealth v. Lacy, 371 Mass. 363, 367, 358
N.E.2d 419 (1976)), such suffering has never been an indispensible element of
the crime of murder with extreme atrocity or cruelty. See Commonwealth v. Golston, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNH]), 366 N.E.2d 744
(1977) (citing cases involving death from a single blow); Commonwealth v.
Satterfield, 362 Mass. 78, 284 N.E.2d 216 (1972) (kicking the victim to death;
no evidence of the victim's consciousness); Commonwealth v. Bartolini, 299
Mass. 503, 515‑516, 13 N.E.2d 382 (1938) (violent blows to living, but
possibly unconscious, victim). The
statutory reference is to "atrocity or cruelty" in the
disjunctive. G.L. c. 265, s 1. Even if "cruelty" implies suffering
on the victim's part, "atrocity" does not. Consequently, the defendant's requests for
instructions that the degree of the victim's suffering was a necessary
consideration for the jury, and its existence an indispensible element of the
crime, were properly denied.
[377 Mass. 349] If the defendant had requested the judge to instruct the jury
that the victim's consciousness and suffering were relevant subjects for
consideration, a different question would have been presented. The importance of a particular factor bearing
on the possibility of extreme atrocity or cruelty varies from case to
case. Here, although the victim
presumably was conscious at least when the first blow was struck, the evidence
presents no picture of the victim's consciousness or suffering. The Commonwealth, therefore, had to prove its
case by relying on other factors. The
judge's charge fairly focused on the evidence that was before the jury. "(I)n the final analysis, the issue must
be left largely to the deliberation of the jury" to "determine when
the mode of inflicting death is so shocking as to amount to extreme atrocity or
cruelty." Commonwealth v. Lacy, 371
Mass. 363, 367‑368, 358 N.E.2d 419, 423 (1976), quoting from Commonwealth
v. Connolly, 356 Mass. 617, 628, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91
S.Ct. 87, 27 L.Ed.2d 79 (1970).
4. Relief under s 33E.
The defendant
argues that we should grant him relief under G.L. c. 278, s 33E. Our consideration of the errors claimed to
have been committed at his trial discloses no reason for granting a new trial. The question whether we should order the
entry of a verdict of a lesser degree of guilt merits some attention.
[17] The
defendant acknowledges that the verdicts of acquittal obtained by Hughes and
Barroni cannot alone justify relief under G.L. c. 278, s 33E. See Commonwealth v. Pisa, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNI]), 363 N.E.2d 245,
cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); Commonwealth
v. DeChristoforo, 371 Mass. 26, 39‑40, 353 N.E.2d 769 (1976). Not only may the evidence be different in one
trial from the other, but we normally do not have both records before us to
make any comparison. See Commonwealth v.
Simpson, 370 Mass. 119, 126‑127, 345 N.E.2d 899 (1976); Commonwealth v.
Williams, 364 Mass. 145, 151, 301 N.E.2d 683 (1973). In other instances, we have been able to make
a reasonable assessment of the relative conduct of two individuals and, on at
least one occasion, we have concluded that justice [377 Mass. 350]
requires a reduction in a sentence to achieve equity in the sentencing
process. See Commonwealth v. Vanderpool,
367 Mass. 743, 750, 328 N.E.2d 833 (1975).
Cf. Commonwealth v. Pisa, supra.
It is
difficult to make any comparison between the treatment accorded Hughes and
Barroni and that accorded the defendant.
We do know, however, from the transcript of a pretrial hearing, that the
defendant told a detective that Hughes and Barroni "never touched"
the victim. The prosecutor did not offer
this statement as evidence at Podlaski's trial because he was not convinced Miranda requirements had been
met. We learned at oral argument that the
statement did come to the attention of the jury in the trial of Hughes and
Barroni. See note 3 Supra. Certainly, justice does not require a
reduction in the defendant's sentence because his acknowledgment of guilt, not
admissible against him at his own trial, was brought forth at the trial of
Hughes and Barroni. Nor do we see s 33E
as designed to benefit a criminal defendant because one or more of his
accomplices were exonerated when perhaps they should not have been.
[18][19]
The defendant argues that his consumption of alcohol just prior to the killing
is of special relevance to our analysis under s 33E because he was an
alcoholic. A defendant's state of
intoxication has been a factor in certain of our decisions ordering a reduction
in a verdict. See Commonwealth v. King, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNJ]), 373 N.E.2d 208
(1978); Commonwealth v. Vanderpool, 367 Mass. 743, 749, 328 N.E.2d 833
(1975). The facts of the case before us
are not similarly persuasive. Here, the question
of the defendant's capacity for deliberate premeditation in spite of his
consumption of alcohol was submitted to the jury and decided against him. Contrast Commonwealth v. King, supra. The evidence in support of deliberate
premeditation is not sketchy (contrast Commonwealth v. Cadwell, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNK]), 372 N.E.2d 246
(1978)); it indicates that the defendant was capable of exercising rational
judgment immediately after the beating.
Death was not the result of fleeting violence (contrast Commonwealth v.
Cadwell, supra; Commonwealth v. Williams, 364 Mass. 145, 152, 301 N.E.2d 683
(1973)), or of a sudden, violent, and unexpected act by a person other than the
defendant (contrast Commonwealth[377
Mass. 351] v. Vanderpool, supra, 367 Mass. at 750, 328
N.E.2d 833). Rather, death came after
the defendant (and others) engaged in a senseless beating of the victim over a
considerable period of time. A reduction
in the defendant's sentence is not justified.
Judgment
affirmed.
(FN1.) In the course of a voir dire on the
admissibility of this statement, discussed below in section 1, Officer Zweihorn
quoted the defendant in a slightly different form of words.
(FN2.)
The victim sustained numerous injuries.
He had multiple abrasions and lacerations on the face, head, and neck; contusions
of the pelvic area and legs; a hemorrhage of the larynx; fractured ribs; blood
in the pleural cavities; fluid in the lungs; blood in the pericardial sac; and
fluid in the brain.
(FN3.)
Hughes and Barroni were tried together in a separate proceeding and
acquitted. Their trial was severed from
the defendant's because after his arrest the defendant had made a confession
that tended to exonerate the others. The
defendant's confession was not offered against him at his trial because the
assistant district attorney had serious doubts about its admissibility. Hughes and Barroni were interested in having
that confession admitted in evidence at their trial; hence, the severance. We were advised at oral argument that this
confession was admitted at their trial as a declaration against penal interest
under Commonwealth v. Carr, 373 Mass. 617, 369 N.E.2d 970 (1977)
(Mass.Adv.Sh. (1977) 2312).
(FN4.)
The defendant now also argues that the statement was inadmissible because it
was an involuntary confession. In the
course of a voir dire on the admissibility of this statement, counsel for the
defendant said at first that he might challenge the statement on the issue of
voluntariness, but, at the conclusion of the voir dire, he indicated that he
would not. The judge thus had no
occasion to focus on, or to make findings concerning, the issue of
voluntariness. The defendant may not
raise an issue on appeal after waiving it at trial.
(FN5.)
If one, but not the other, theory justified submitting the question of murder
in the first degree to the jury, the defendant's motion for a directed verdict
could not preserve his appellate rights against submission of the case to the
jury on the improper theory. Requests
for instructions and objections to the judge's charge are the appropriate
remedies in such an instance.
(FN6.)
Here, too, we stress that this is not properly a directed verdict issue on
appeal, if there was any other basis on which the case could have been
submitted to the jury. Rather curiously,
the defendant argues before us that the case should not have been presented to
the jury on the theory of joint venture, and yet he submitted requests for
instructions concerning the circumstances of a joint venture, rather than
requesting an instruction that the evidence did not warrant a finding that the
defendant was guilty on the basis of the conduct of Hughes or Barroni.
The
defendant objects to the judge's failure to give requested instructions
concerning joint venture. The judge was
not required to instruct the jury in the precise language requested. Commonwealth v. Martin, 357 Mass. 190, 193‑194,
257 N.E.2d 444 (1970). He adequately
explained the law of joint venture in the instructions he did give.
FNa. Mass.Adv.Sh. (1977) 1459, 1466‑1469).
(FN7.) Among the evidence that would support
the conclusion that the defendant was knowingly involved in the beating are:
(a) his statement to the police, (b) his association with Hughes and Barroni in
the house before the beating and while they were dragging the victim, (c) the
blood on his shoes and pants, (d) his changing his shirt, (e) his attempt to
wash the blood off his pants, (f) his statement on the street, "Oh, shit,
the bastard is dead," and (g) his act of fleeing when Mrs. Peltz yelled, "What
are you doing?"
FNb. Mass.Adv.Sh. (1978) 431, 442‑443.
FNc. Mass.Adv.Sh. (1977) 1459, 1467.
FNd. Mass.Adv.Sh. (1977) 1778, 1790.
FNe. Mass.Adv.Sh. (1977) 1619, 1624.
FNf. Mass.Adv.Sh. (1977) 1459, 1466.
(FN8.) The defendant requested the following
instruction: "To determine the degree of atrocity or cruelty, It is
necessary to consider the consciousness and degree of suffering of the victim ;
the disproportion between the means needed to inflict death and those employed;
the instrumentalities employed; and the extent of the physical injuries"
(emphasis supplied).
The
judge referred explicitly to the other elements stated in the requested
instruction.
FNg. Mass.Adv.Sh. (1978) 214, 235.
FNh. Mass.Adv.Sh. (1977) 1778, 1790.
FNi. Mass.Adv.Sh. (1977) 1036, 1045.
FNj. Mass.Adv.Sh. (1978) 494, 501.
FNk. Mass.Adv.Sh. (1978) 237, 245.