|
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. Prater, 420
Supreme Judicial Court of Massachusetts,
Argued
Decided
Leah R. Kunkel,
Mary O'Neil, Sp. Asst. Dist. Atty., for the Com.
Before [420
ABRAMS, Justice.
Notwithstanding
his defense of lack of criminal responsibility, the defendant was convicted of
murder in the first degree by reason of extreme atrocity or cruelty. (FN1)
The defendant appeals on the grounds that (1) the evidence was
insufficient to support the trial judge's determination that he was competent
to stand trial; (2) a videotaped
confession should have been suppressed as the tainted product of an earlier,
suppressed confession; and (3) pursuant
to our power under G.L. c. 278, § 33E (1992 ed.), we
should order a new trial or enter a lesser degree of guilt. We affirm the conviction. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant to order a
new trial or enter a verdict of a lesser degree of guilt.
I. Facts.
We review the facts in a light favorable to the Commonwealth.
Commonwealth v. Kappler, 416
The two
men had an extended conversation while drinking. At some point the defendant became
agitated; an argument ensued, and the
two men came to blows. The defendant
confessed to punching the victim in the face several times until he fell to the
floor. The defendant then searched out
and found an axe which he knew the victim kept in a nearby cabinet. According to the defendant, "something
just made me kill him. Something went
into my head and said, 'kill that guy.' "
Once he had the axe, the defendant "just went right towards him and
started ... [c]utting him in half.... [The victim] picked his head up and he looked
up at [the defendant] [and said,] 'Oh, God,' ... [and the defendant] just
sliced his brain in half." (FN2)
The
defendant did not leave until he was certain the victim had died. The defendant explained that the victim
"was making noises, blood gurgling, coughing blood up ... barfing blood up
... then he reached the point where he had no blood in him. That was the last mouthful that he barfed
up." The defendant told police
that he "waited till [the victim] was dead and didn't breathe no more and
then all the blood was on the ground and [he] kicked him to see if he was
alive. He didn't move."
From 520
Cherry Street the defendant went to a local bar, the Tremont Café. There, Paulie Barboza, a friend of the defendant, helped the defendant
wash blood from his jacket and hands.
Once his jacket had dried, the defendant proceeded to a second bar,
Shaker's. Around 11 P.M. the defendant
confided in another friend, Joseph Rutkowski, that he
had just killed someone. Doubtful that
the defendant had committed a murder, but intending to steal any valuables from
the victim's apartment if the defendant had killed him, Rutkowski
dared the defendant to show him the body.
The [420 Mass. 572] two men left Shaker's and drove to
the victim's apartment in Rutkowski's car. The defendant confessed that he again
"[k]icked [the victim] to see if he was
alive." When the defendant showed Rutkowski the body, Rutkowski
said "they should hire you for some Union." But when he saw the defendant pick up the
axe, "Ru[t]kowski got
scared. He ran out into the hallway,
thought [the defendant] was going to do him up for robbing [the
victim]." The defendant ran after Rutkowski, dropping the axe on the stairway in his rush to
catch up with him. Catching Rutkowski before he drove away, the defendant said,
"Joe, let's go and have a few drinks, you know, hang around.... No problem.
Let's go ... I'll pay for it."
Rutkowski drove the defendant back to Shaker's, where he
called the police from a public telephone.
In the interim, the defendant argued with another bar patron, whom he
threatened to kill just as he had killed the victim. When the police arrived at Shaker's, the
defendant and Rutkowski accompanied them to Cherry
Street. The defendant then was arrested,
initially for assault and battery by means of a dangerous weapon, and brought
to the police station. After being read
the Miranda warnings he signed a waiver form.
In his statement, the defendant confessed to the crime. After the first confession, the defendant
consented to a second round of interrogation while being videotaped. The trial judge suppressed the first
confession but allowed the second. The
facts surrounding the two confessions given by the defendant at the station are
provided in more detail in the analysis of their admissibility. See
infra. The defendant did not
challenge the facts of the murder. His
trial strategy was based on his claim that he was not criminally responsible.
II. Competency to stand trial. The defendant entered a plea of not guilty
and requested a hearing on competency.
Pursuant to G.L. c. 123, § 15(b ) (1992 ed.), the defendant was
examined at Bridgewater State Hospital by the assistant medical director, who
reported to the motion judge that the defendant was competent to stand trial. The motion judge held a three‑day
hearing and received testimony from five
[420 Mass. 573] mental health
experts as to the defendant's competence.
See Pate v. Robinson, 383 U.S.
375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966)
(criminal defendant's due process right to fair trial requires hearing on issue
of competence to stand trial); Commonwealth v. Hill, 375 Mass. 50, 375
N.E.2d 1168 (1978). After the hearing,
the motion judge concluded that the defendant was competent to stand
trial. The defendant argues that the
evidence was insufficient to support the motion judge's conclusion that the
defendant was competent to stand trial.
He further challenges the motion judge's finding on the ground that the
hearing on competence did not satisfy the due process clause. We do not agree.
[1]
"It has long been accepted that a person whose mental condition is such
that he lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing
his defense may not be subjected to a trial." Drope
v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896,
903, 43 L.Ed.2d 103 (1975). See Commonwealth v. Crowley, 393 Mass. 393,
398, 471 N.E.2d 353 (1984) (criminal defendant may not stand trial if unable
to understand charges against him, communicate with counsel, and aid in his own
defense). In Commonwealth v. Vailes, 360 Mass. 522,
275 N.E.2d 893 (1971), we followed the standard of competency to stand trial
set forth by the United States Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct.
788, 4 L.Ed.2d 824 (1960) (per curiam). See also
Drope v. Missouri, supra; Godinez
v. Moran, 509 U.S. 389, ‑‑‑‑, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993). For a criminal defendant to be competent to stand
trial, the judge hearing the competency issue must find that the Commonwealth
has shown by a preponderance of evidence, (FN3) Commonwealth v. Crowley, [420
Mass. 574] supra, 393 Mass. at
401‑402, 471 N.E.2d 353, that "[ (1) ] [the defendant] has sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding and ... [ (2) ] [the defendant] has a rational as well as factual
understanding of the proceedings against him." Commonwealth v. Vailes, supra 360 Mass. at 524, 275 N.E.2d 893, quoting Dusky v. United States, supra 362 U.S.
at 402, 80 S.Ct. 788, 4 L.Ed.2d 824.
[2] In
reviewing the motion judge's determination that the defendant was competent to
stand trial, we give substantial deference to his findings of fact because the
judge had the opportunity to view the witnesses in open court and to evaluate
the defendant personally. Commonwealth v. DeMinico,
408 Mass. 230, 235‑236, 557 N.E.2d 744 (1990). The motion judge had a duty to weigh the
credibility of the expert testimony in determining whether the Commonwealth had
met its burden of proof to show the defendant had a "present ability to
consult with his lawyer with a reasonable degree of rational
understanding" and also to determine whether the Commonwealth had shown
that the defendant had "a rational as well as factual understanding of the
proceedings against him." Commonwealth v. Vailes,
supra.
[3] The
experts generally agreed that the defendant had a low intelligence quotient
(IQ) indicative of borderline retardation and that he was on medication usually
prescribed for mental illnesses, (FN4) but offered conflicting conclusions as
to the defendant's competency to stand trial.
Weighing the conflicting conclusions of the experts, the judge credited
testimony of Dr. Luber that, although the defendant
had a low IQ and had suffered from psychiatric problems in the past, he could
communicate with his lawyer and participate in his defense and also had a
rational and factual grasp of the proceedings [420 Mass. 575] against
him. The motion judge was not obliged to
accept the testimony of other experts who opined that, due to his low IQ and
various diagnoses of psychiatric disorders, the defendant was not competent. See
Commonwealth v. DeMinico, supra 408 Mass. at 235‑236,
557 N.E.2d 744 ("Judicial experience with psychiatric testimony makes it
abundantly clear that it would be unrealistic to treat an opinion ... by an
expert on either side of ... [an] issue as conclusive"), quoting Commonwealth v. Lamb, 372 Mass. 17, 24,
360 N.E.2d 307 (1977). See also Commonwealth v. Kappler,
supra, 416 Mass. at 579, 625 N.E.2d 513 (acceptance of "uncontroverted testimony of experts" not required);
Commonwealth v. Shelley, 381 Mass. 340, 347, 409 N.E.2d
732 (1980) (finder of fact "not obliged to believe the testimony of any of
the expert witnesses" in determining defendant's criminal
responsibility). It is not the number of
experts, but the credibility of their testimony which the judge must weigh.
The
defendant relies heavily on Commonwealth
v. Crowley, supra, where we reversed a ruling that the defendant was
competent to stand trial on the ground that the very minimal evidence of
competence was insufficient to satisfy the Commonwealth's burden of proof by a
preponderance of evidence and where it was "not clear from the record ...
whether the judge placed the burden of proving competency on the prosecution,
as is appropriate." Id., 393 Mass. at 400, 471 N.E.2d
353. By contrast, the evidence was
sufficient to support the motion judge's ruling. Furthermore, although there was confusion at
the time of the hearing as to the burden of proof, the written ruling following
the hearing made clear that the burden of proof was on the Commonwealth and the
judge applied that burden in ruling on the defendant's competency. (FN5)
The proceedings[420 Mass. 576]
afforded the defendant in reaching that conclusion were not
constitutionally defective.
[4] III.
Motion to suppress videotaped confessions. In reviewing the trial judge's rulings on
the defendant's motion to suppress, "[w]e accept, as we must, the trial
judge's resolution of conflicting testimony ... and will not disturb his
subsidiary findings if they are warranted by the evidence.... However, ultimate findings and conclusions of
law, particularly those of constitutional dimensions, are open for our
independent review in this appeal."
(Citations omitted.) Commonwealth v. Mahnke,
368 Mass. 662, 666‑667, 335 N.E.2d 660 (1975), cert. denied, 425 U.S.
959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).
The
defendant gave two confessions to the police after his arrest. The first was not recorded at the time it was
given, but the second was videotaped.
Prior to the first confession, which began around 2:50 A.M., the police
read the defendant the Miranda warnings and he signed the waiver form. The trial judge found that the defendant's
name was printed by him on the first waiver form and the defendant misspelled
his name. The trial judge also credited
testimony from the interviewing officers that the defendant "smelled of
alcohol, appeared glassy‑eyed, but was able to walk normally and talk
without slurring." Based on the
conclusion that the defendant was very intoxicated, the judge ruled that the
waiver was not knowing, intelligent, and voluntary and accordingly granted the
defendant's motion to suppress the first confession.
However,
the judge denied the defendant's motion to suppress the second, videotaped
confession. After answering police
questions and making incriminating statements, the defendant was asked if he
would repeat his statement (confession) on videotape. He agreed.
He did not request a lawyer. It took
police approximately one and one‑half hours to retrieve and assemble the
necessary audiovisual equipment. In the
interim, the defendant was allowed to use the [420 Mass. 577]
telephone. The defendant's mother also
arrived at the station. Seeing his
mother, the defendant made incriminating statements to the effect that,
"That was you I killed." The
police immediately separated the defendant and his mother.
The
videotaping began at 5:27 A.M. and continued for approximately twenty
minutes. The Miranda warnings were
repeated and the police asked the defendant if he understood the warnings. The defendant indicated he understood them
and signed a second waiver form while being videotaped. Before signing the waiver form, the defendant
told
the police: "I don't
know how to read. I'll be honest with
[you]." The police then read the
defendant the warnings required by
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966). The police
indicated where the defendant should sign the waiver form. The trial judge determined that the second
form was signed and the defendant spelled his name properly, and because the
effects of the alcohol had worn off, this second waiver was knowing,
intelligent, and voluntary. (FN6)
The
defendant argues on appeal that the second videotaped confession should have
been suppressed for two reasons. First,
the defendant argues that he did not knowingly, intelligently, and voluntarily
waive the Miranda warnings. Second, the
defendant argues that the second confession was tainted by the first
confession, which the trial judge suppressed as involuntary. The defendant maintains that the first and
second confessions were obtained in such rapid succession that there was no
"break in the stream of events" and thus, the circumstances which
rendered the first confession involuntary equally influenced the second
confession. Furthermore, contrary to the
trial judge's specific findings of fact as to the [420 Mass. 578]
defendant's motivations for giving the second confession, the defendant asserts
that the first confession "let the cat out of the bag," and that his
awareness that he had incriminated himself in the first confession was the
motivating factor in giving the second confession. Under a line of decisions from Commonwealth v. Mahnke,
supra, through Commonwealth v. Osachuk, 418 Mass. 229, 635 N.E.2d 1192 (1994), which
addresses the admissibility of confessions given subsequent to inadmissible
incriminating statements, the defendant maintains that the second confession
could not have been voluntary‑‑given his low IQ and intoxication,
and his knowledge that he had already let the cat out of the bag‑‑and
thus should not have been admitted at trial.
[5] A. Knowing, intelligent, and voluntary waiver. The Commonwealth had the burden of proof
beyond a reasonable doubt that the defendant knowingly and intelligently waived
the constitutional rights protected by Miranda. Commonwealth v. Day, 387
Mass. 915, 921, 444 N.E.2d 384 (1983).
The trial judge found that the defendant had been properly warned and
that the defendant made a valid waiver before the videotaped confession. We reject the defendant's suggestion that we
should replace the trial judge's supported findings with our own findings that
he was not intelligent enough and also was too intoxicated to comprehend his
rights and waive them at the start of the 5:27 A.M. videotaped confession. Findings of fact are for the trial court, not
an appellate court. (FN7)
"Illiteracy
and low intelligence are factors in examining the totality of the circumstances
leading to a waiver" (citations omitted). Commonwealth v. Taylor, 398
Mass. 725, 728, 500 N.E.2d 799 (1986).
See Commonwealth v. Medeiros,
395 Mass. 336, 347, 479 N.E.2d 1371 (1985) ("A mentally deficient adult
may make an effective waiver of his rights and render a voluntary, knowing, and
admissible confession"), quoting
Commonwealth v. [420 Mass. 579] Cameron, 385 Mass. 660, 665, 433
N.E.2d 878 (1982). "Intoxication
also bears on the validity of a waiver and the voluntariness
of a statement" (citations omitted). Commonwealth v. Taylor, supra. The trial judge carefully considered both
the defendant's intelligence and his level of intoxication in determining that
the defendant was capable of understanding the Miranda warnings, especially
because this was not the first time he had been subject to a custodial
interrogation pursuant to Miranda, see, e.g., Commonwealth v. Davis, 380 Mass. 1, 4‑6, 401 N.E.2d 811
(1980), and that by 5:27 A.M. the defendant was not overcome by intoxication,
see, e.g., Commonwealth v. Doucette,
391 Mass. 443, 448, 462 N.E.2d 1084 (1984).
The trial judge heard testimony from the arresting and interrogating
officers and viewed the videotape.
Having viewed the videotape and reviewed the record, we conclude that
the judge's decision to credit the defendant's videotaped assertion that by the
time of the videotaping the effects of the alcohol had worn off was warranted
by the videotape itself. (FN8) We now turn to whether the second confession
was tainted by the first confession.
B. Effect of first confession on admissibility
of second videotaped confession. As
we recently explained in Commonwealth v.
Smith, 412 Mass. 823, 829, 593 N.E.2d 1288 (1992), "[u]nder Federal constitutional law prior to the decision of
the United States Supreme Court in Oregon
v. Elstad, 470 U.S. 298, 105 S.Ct.
1285, 84 L.Ed.2d 222 (1985) ... an admission or confession of guilt obtained
from an accused person in violation of the Miranda requirements was presumed to
taint any subsequent confession made by the accused, and the taint could not be
dissipated solely by giving Miranda warnings. Commonwealth v. Haas, 373
Mass. 545, 554, 369 N.E.2d 692 (1977) [,
S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986) ]." In
Oregon v. Elstad, supra, 470 U.S. at 300, 105 S.Ct. at 1288, the United States Supreme Court reconsidered
"whether an initial failure of law enforcement officers to administer the
warnings required by Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
without more, 'taints' subsequent admissions made after a suspect has been [420 Mass. 580] fully advised of and has waived his Miranda rights," and ultimately rejected the rule of a
presumptive taint. (FN9)
[6][7] We
have declined to follow the Supreme Court's decision in Oregon v. Elstad, supra, to reject the
rule of presumptive taint. Commonwealth v. Smith, supra, 412 Mass.
at 836, 593 N.E.2d 1288. Instead, we
"presume that a statement made following the violation of a suspect's
Miranda rights is tainted, and ... require the prosecution [to] show more than
the belated administration of Miranda warnings in order to dispel that
taint." Id.
"This presumption may be overcome by showing that either: (1) after the illegally obtained statement,
there was a break in the stream of events that sufficiently insulated the post‑Miranda
statement from the tainted one; or (2)
the illegally obtained statement did not incriminate the defendant, or, as it
is more colloquially put, the cat was not out of the bag."
Commonwealth v. Osachuk, supra, 418 Mass.
at 235, 635 N.E.2d 1192. See Commonwealth v. Haas, supra. The parties dispute whether a court is
required to undertake both lines of analysis (i.e., both break‑in‑the‑stream‑of‑events
and cat‑out‑of‑the‑bag analyses) in determining the
admissibility of confessions given subsequent to statements taken in violation
of the Miranda requirements. (FN10)
[420 Mass. 581] [8] The focus and ultimate goal of undertaking either or both
lines of analysis is a determination of the voluntariness
of the later confession. If the
defendant's subsequent statements were not a product of coercion, either by
coercive external forces or primarily by a sense of futility that he has
already incriminated himself with the first statement, then the Fifth Amendment
to the United States Constitution does not require suppression of the subsequent
statement.
[9] It was
clear that the defendant's first statement to police was inculpatory. The trial judge ruled that the first
confession was obtained in violation of the Miranda requirements, because given
the defendant's level of intoxication and his low IQ, the Commonwealth could
not establish beyond a reasonable doubt that the defendant had knowingly,
intelligently, and voluntarily waived the Miranda warnings. However, the trial judge allowed the second videotaped
confession, ruling that it was not tainted by the first confession. Although the trial judge did not break his
analysis of the second videotaped confession down into separate discussions of
(1) whether there was a "break in the stream of events," and (2)
whether the defendant was motivated to confess on videotape by the fact that
the "cat was out of the [420
Mass. 582] bag," his written
order properly addresses both prongs of the analysis.
First,
with respect to whether there was a "break in the stream of events,"
the trial judge properly considered external factors, see Commonwealth v. Smith, supra, 412 Mass. at 830, 593 N.E.2d 1288
(focus of break‑in‑stream‑of‑events analysis "is
on external constraints, continuing or new, which may have overborne the
defendant's will"), the "temporal proximity" of the second
confession to the first, illegally obtained confession, see Commonwealth v. Haas, supra, 373 Mass. at 554, 369 N.E.2d 692, and
the "presence of intervening circumstances," between the two
confessions, see id. Based on these considerations the trial
judge determined that: (1) by the time
the defendant received Miranda warnings for the videotaped confession
sufficient time had elapsed for the effects of alcohol to have worn off; and (2) ninety minutes passed between
termination of the first confession and the commencement of the videotaped
confession. The trial judge further
noted that on the videotape the "[d]efendant
appears ... to be calm, making eye contact with the police, joking...."
(FN11) These findings of fact support a
conclusion that there was a break in the stream of events sufficient to
insulate the second confession from the circumstances of the first
confession. We note that because the
trial judge indicated in his order that the defendant's intoxication was the
primary reason the judge was not convinced beyond a reasonable doubt that the
first confession was voluntary, the trial judge's findings with regard to the
passage of time and the defendant's appearance of sobriety on the videotape
support his implicit conclusion that there
[420 Mass. 583] was a break in
the stream of events between the first and second confessions.
Second,
the trial judge made several findings of fact with respect to the conclusion
that the videotaped confession "was not a case of the defendant concluding
that the 'cat was out of the bag' and he had 'nothing more to lose' (even
though defendant used those phrases)."
The trial judge found that, by the time of the second confession, being
sober, (1) the defendant began to realize "[t]he enormity of what he had
done" and (2) "felt the pangs of a guilty conscience. [ (3) ] He hoped for favorable treatment by
the police. [ (4) ] He was feeling the
pressure to seek expiation by confession." Accordingly, the trial judge concluded that
the defendant's decision to consent to the videotaped interrogation "was
not primarily motivated by a feeling that the cat was out of the bag."
At issue
is the defendant's state of mind at the time of the 5:27 A.M. videotaped
confession. The defendant has a low
IQ; he had consumed a significant amount
of alcohol during the previous evening;
and, in response to the question posed by police at the commencement of
the second videotaped confession‑‑"Have you been promised
anything for videotaping this or anything like that? Are you under any duress or are we forcing
you, or are you doing this of your own free will?"‑‑the
defendant stated, "Seeing as I got nothing else to lose, I'll do this,
too."
In
addition to emphasizing his low intelligence and intoxication, the defendant
maintains that his above‑quoted statement that he had "nothing to
lose," weighs heavily against the trial judge's conclusion that the second
confession was not a case of the cat's being out of the bag. It is true that in giving meaning to the
metaphor "cat out of the bag," courts have explained that "[a]
principal reason why a suspect might make a second or third confession is
simply that, having already confessed once or twice, he might think he has little to lose by repetition.... It would be neither conducive to good police
work, nor fair to a suspect, to allow the erroneous impression that he has nothing to lose to play the [420 Mass. 584] major role in a defendant's decision to speak a second or third
time." (Emphasis added.) Darwin
v. Connecticut, 391 U.S. 346, 350‑351, 88 S.Ct.
1488, 1490‑1491, 20 L.Ed.2d 630 (1968) (Harlan, J., concurring in part
and dissenting in part); Commonwealth v. Mahnke,
supra 368 Mass. at 686, 335 N.E.2d 660 (quoting Darwin, supra ). While we
recognize the concern of the cat‑out‑of‑the‑bag
analysis, we conclude that the one statement by the defendant does not
automatically compel exclusion of the videotape. See
Commonwealth v. White, 353 Mass. 409, 417, 232 N.E.2d 335 (1967) ("If
the relation between the earlier and later confession is not so close that one
must say the facts of one control the character of the other, the inference is
one for the triers of fact and their conclusion, in
such an uncertain situation, that the confession should be admitted as
voluntary, cannot be a denial of due process"), quoting Lyons v. Oklahoma, 322 U.S. 596, 603,
64 S.Ct. 1208, 1213, 88 L.Ed.
1481 (1944).
In Commonwealth v. Mahnke,
supra 368 Mass. at 687, 335 N.E.2d 660, we noted that the defendant, in
making a second confession, thought that "he had 'little to lose' ...
through further admissions, but not because he feared the use of his previous
statements. He may have thought he had
'little to lose' based on an actual belief that he could not be
convicted." Further, we noted, id. at 688, 335 N.E.2d 660, that the
further admissions might have been due to "relief at having divulged his
secret at last. Neither of these
sentiments is the sentiment against which the cat‑out‑of‑the‑bag
analysis would guard. Fear, continuation
of coercive effects, and a sense of futility of attempting to 'get the cat back
in the bag' are the objects of the analysis." The trial judge in this case considered
specifically whether the primary motivation of the defendant was that he had
already incriminated himself and found to the contrary. "In these circumstances, we cannot say,
contrary to the judge's findings, that the [videotaped confession was]
involuntary because [it was a] product[ ] of earlier statements." Id. The videotape, which is before us, supports
the judge's determination that the statement was voluntary. Further, much of what the defendant told the
police, he also told Paulie Barboza
and Joseph Rutkowski.
[420 Mass. 585] [10] IV. Relief under G.L.
c. 278, § 33E. The defendant argues
that justice requires that we order a new trial or direct the entry of a
verdict of a lesser degree of guilt.
(FN12) The defendant emphasizes
that he was nineteen years old at the time of the murder; he was abused by his parents as a child; he has a lifelong history of psychological
imbalance; and he has an IQ of about
70. We acknowledge the defendant's
difficult circumstances, but do not think his background can overcome the
evidence against him at trial, which strongly supported the jury verdict that
the defendant killed Larue with extreme atrocity or cruelty by bludgeoning his
head and face with an axe. Even if the
admissibility of the second videotaped confession turned on a close question of
fact as to the defendant's state of mind, the defendant made an overwhelming
number of incriminating statements which were admitted in evidence and
correctly are not challenged on appeal.
We note that on the evening prior to the murder, the defendant told a
close friend that he was going to murder someone. After the murder, Paulie
Barboza helped him wash blood from his jacket and
hands. The defendant brought Rutkowski to the murder scene after boasting that he had
killed someone. After showing Rutkowski the murder scene and returning to Shaker's bar,
the defendant threatened a patron with whom he argued that he would "chop
off his head" just as he had the victim's.
Finally, the defendant yelled at his mother, in front of police,
"That was you I killed."
[11] The
defendant argues that the judge failed specifically to instruct the jurors that
they must conclude that the videotaped statement was the product of a rational
mind. We consider "the charge in
its entirety since the adequacy of instructions must be determined in light of
their over‑all impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231‑232, 402 N.E.2d 1329
(1980). The question whether "the
confession was the product of a rational intellect [is] part of the issue of [420 Mass. 586] voluntariness."
Commonwealth v. Johnston, 373 Mass. 21, 25, 364 N.E.2d 1211
(1977). The judge correctly submitted
the issue of voluntariness, including rational
intellect, to the jurors. The
defendant's complaint that the judge only instructed once on the issue of
rational intellect and that he did not emphasize its significance is without
merit. The instructions on voluntariness were correct.
There is no substantial likelihood of a miscarriage of justice.
We have
considered the entire case on the law and the evidence, see G.L.
c. 278, § 33E, and conclude that the interests of justice do not require a new
trial or entry of a verdict of a lesser degree of guilt.
Judgment affirmed.
(FN1.) The judge also submitted this case to
the jurors on the theory of deliberate premeditation. The verdict returned by the jurors was based
solely on extreme atrocity or cruelty.
(FN2.)
The medical examiner's report indicated that the victim suffered at least seven
blows to the head with a blunt object and that the injuries to the head and
face area were consistent with blows with an axe and punches with a fist.
(FN3.)
At the hearing, the parties and the motion judge proceeded as if the burden of
proof rested with the defendant.
However, prior to making his findings and issuing his order, the judge
properly determined that the burden of proof rested with the Commonwealth. As the judge noted in his order, the
misapprehension at the hearing did not effect the fairness of the hearing to
the defendant, because the practical effect of it was to allow the defendant to
present more evidence tending to show incompetence than the Commonwealth
presented tending to show competence.
Nevertheless, when evaluating the evidence under the proper standard,
the motion judge still credited the Commonwealth's evidence. Because the confusion was cleared by the
motion judge prior to making findings and issuing his order, there was no
fundamental unfairness created by the misapprehension at the hearing.
(FN4.)
Although use of prescription medication for psychiatric disorders is a factor
carefully to be considered in determining competency to stand trial, there was
testimony from one expert that because the issue is whether the defendant is
presently competent to stand trial, one cannot properly reason backward from the
fact of use of prescription drugs to whether the defendant is now
competent. The trial judge credited
expert testimony based on current evaluations of the defendant.
(FN5.)
The motion judge acknowledged the confusion in his written ruling after the hearing,
but stated that "the defendant was not prejudiced by the apparently shared
misconception concerning burden of proof during the hearing in view of the fact
that he not only offered the testimony of the psychologist and the two
psychiatrists that he had been authorized to engage, but also offered the
testimony of an additional witness, a lawyer‑psychologist. Furthermore, the only witness offered by the
Commonwealth was the psychologist who had authored the required report under §
15(b ).... He therefore could not have been prejudiced
when that witness, and only that witness, testified for the Commonwealth."
(FN6.)
Pursuant to G.L. c. 278, § 33E, the defendant asserts
that he was not permitted to see or speak with his child care counsellor. At trial,
the counsellor (a witness limited to the defendant's
mental capacity) so stated. At the
motion hearing and at trial, the police said that the defendant spoke with the counsellor by telephone, and that after that conversation,
the counsellor spoke with an officer and told the
officer to get in touch with the defendant's mother. The police did so. To the extent that there was a conflict in
trial testimony, resolution of the conflict was for the finder of fact.
(FN7.)
In his brief, the defendant accepts as fact the opinions set forth by his
experts. While we are in the same
position as the trial judge in viewing the videotape, the question whether to credit oral testimony by experts
was first for the trial judge, and then for the jurors. The credibility of witnesses is not for the
appellate court.
(FN8.)
During the videotaped confession, the defendant spontaneously stated that the
effects of the alcohol had worn off.
(FN9.) In that case, the Supreme Court
stated: "[A]bsent
deliberately coercive or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned admission does not warrant a
presumption of compulsion. A subsequent
administration of Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement.
In such circumstances, the finder of fact may reasonably conclude that
the suspect made a rational and intelligent choice whether to waive or invoke
his rights." Oregon v. Elstad,
470 U.S. 298, 314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d
222 (1985).
(FN10.) We addressed this dispute in Commonwealth v. Smith, 412 Mass. 823,
593 N.E.2d 1288 (1992), explaining that the two lines of analysis are intended
to aid courts in determining whether the later statements were voluntary. Id.
at 830, 593 N.E.2d 1288. Depending on
the facts of the case, either or both of these lines of analysis may be
applicable. For example, we noted that
in Commonwealth v. Haas, 373 Mass.
545, 369 N.E.2d 692 (1977), S.C., 398
Mass. 86 (1986), the first statements were inculpatory
and were obtained in violation of the Miranda requirements and therefore
applied both lines of analysis in determining that the subsequent statements
should have been suppressed. However, we
also noted that in Commonwealth v.
Watkins, 375 Mass. 472, 379 N.E.2d 1040 (1978), because the first
statements made to police were evoked by illegal police interrogation but were
not inculpatory, the break‑in‑stream‑of‑events
line of analysis but not the cat‑out‑of‑the‑bag
analysis was applicable. Commonwealth v. Smith, supra 412 Mass. at
831, 593 N.E.2d 1288. Finally, we
rejected the Commonwealth's argument in
Commonwealth v. Smith, supra at 833 n. 9, 593 N.E.2d 1288, that where the
first statement, although obtained in violation of the Miranda requirements, is
not inculpatory, there is no need for a court to
undertake a break‑in‑the stream‑of‑events analysis
before admitting subsequent statements.
"In circumstances where a suspect is subjected to a continuous
custodial interrogation (i.e., there is no break in stream of events) but does
not respond with an incriminating statement until after the Miranda warnings
have been given (i.e., the cat is not out of the bag), it may be argued that no
Fifth Amendment violation has occurred....
However, because interrogation without benefit of the Miranda warnings
is itself improper police conduct, the absence of a break in the stream of
events, in some circumstances, may mandate the suppression of a post‑Miranda
statement, even where the suspect made no incriminating statement during the
course of the illegal interrogation." Id.
Thus, whether one or both lines of analysis is required before a
confession is admitted turns on the facts of the case.
(FN11.) The trial judge noted the defendant's
attempt at humor by allusion to the case of Commonwealth vs. Lizzie Borden, with the statement: "I hit him. Then the guy went to get up, come at me. I hit him again, then that finally did it, che [sic]. I hit him
with an axe, gave him [forty] whacks, ha ha." The fact that the defendant's expert viewed
these remarks as supporting the defendant's claim of incompetence and
involuntariness does not require the trial judge, the jurors, or this court to
accept the expert's explanation.
(FN12.) The defendant did not challenge the
facts of the murder at trial. His
strategy was directed at a defense of lack of criminal responsibility.