|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Raymond,424
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Roderick B. O'Connor for defendant.
Elizabeth Dunphy
Farris, Assistant District Attorney, for Commonwealth.
Before WILKINS, C.J., and
O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.
FRIED, Justice.
The
defendant, John Raymond, was indicted for forcible rape of a child and murder
in the first degree. The jury convicted
him on both indictments, and the judge sentenced him to two consecutive life
terms. He has appealed from his
convictions and has made two motions for a new trial, the first of which was
denied and the second of which has not yet been heard. We affirm the convictions and find no reason
to grant a new trial or reduce the degree of murder under G.L.
c. 278, § 33E. We remand to the Superior
Court for consideration of those aspects of Raymond's second motion for a new
trial, which have not yet been heard.
I
The
body of the fifteen year old victim was discovered floating in the
Raymond
Stanislawski, after initially denying involvement in
the victim's death, gave a statement to the police in which he implicated
himself and the defendant in the murder of the victim. According to Stanislawski,
the defendant and he were drinking and ingesting cocaine during the day of the
murder. Raymond drove Stanislawski to the victim's apartment where they offered
to drive her to a store. Instead, the
three drove to
After
hearing Stanislawski's statement, the police asked
Raymond to go voluntarily to the station house for questioning, which he agreed
to do. At the station house, Raymond
received Miranda warnings, and signed a waiver form. The police brought in Stanislawski. The police read his statement to Raymond, and
then Stanislawski said to him: "[T]here's no use lying Jackie
[Raymond], it's all over." Raymond
showed signs of upset, but denied having committed the murder. The police told him that his mother lied to
the police on his behalf and that she might therefore be implicated as an
accessory after the fact. The officers
continued to accuse Raymond as he alternatively denied the charges by shaking
his head and lapsed into silence. The
officers told Raymond that he should not allow Stanislawski's
story, which placed most of the blame on Raymond, to stand as the only
account. After approximately twenty
minutes of this questioning, Raymond decided to make a statement. Raymond's statement was similar to Stanislawski's in most respects but Raymond indicated that
he was so physically impaired by drugs and alcohol that he was unable to rape
the victim, and he stated [424 Mass.
385] that the rape and murder were
both Stanislawski's idea and that Stanislawski
had been the one to choke the victim.
Raymond
was the first to be brought to trial. Stanislawski testified for the Commonwealth. The Commonwealth introduced Stanislawski's statement to police as well as
Raymond's. In addition, the Commonwealth
introduced witnesses who had seen Raymond and Stanislawski
with the victim on the night she was killed.
The defendant maintained an alibi defense with several members of his
family vouching for his whereabouts on the night of the murder. He argued that the confession was coerced,
fabricated by the police, and that he had signed it without reading it because
he was afraid of the police and wanted to protect his mother. Raymond was found guilty, and Stanislawski
later accepted a plea bargain in which he confessed to murder in the second
degree.
After
being sentenced to two consecutive life sentences, Raymond filed a motion for a
new trial complaining about the judge's instructions on intoxication and the
admission of Stanislawski's written statement, and
presenting evidence that Stanislawski had recanted
his testimony. Stanislawski
refused to testify at the hearing on the motion, invoking his privilege under
the Fifth Amendment to the United States Constitution. The judge denied the motion in all respects.
Raymond
recently filed a second motion for a new trial based on a letter written to
Raymond's sister which he claims implies that, contrary to Stanislawski's
claims and the Commonwealth's position at trial, Stanislawski's
testimony was elicited through an offer of a lesser sentence by the
Commonwealth. This second motion has not
yet been heard by a motion judge. The
relevant part of the letter states:
"I thought you knew
I was doing a second degree life sentence.
Yes I knew I was gonna [sic ] get that when I testified."
II
A
Raymond
challenges the judge's instructions to the jury on two grounds: that they were confusing and in violation of Commonwealth v. Sama,
411
Raymond
first claims that the judge's instructions were erroneous under our decision in Commonwealth v. Sama,
supra. In that case, "[t]he
judge repeatedly instructed the jury to consider first whether the defendant
was guilty of murder in the second degree under one or more of the three
alternative forms of malice, and then decide whether the evidence supported an
additional finding of deliberate premeditation or extreme atrocity or cruelty,
which would increase the verdict from second to first degree murder."
[1][2]
Raymond did not object to the instructions at trial so we consider them under
the substantial likelihood of a miscarriage of justice standard. G.L. c. 278, §
33E. We look to the charge as a whole to
determine whether it fairly instructs the jury. Commonwealth v. Blanchette, 409
[3][4]
The defendant also contends that the instructions on intoxication were in error
because the judge did not specifically inform the jury that voluntary
intoxication could be considered to reduce the verdict from murder in the first
degree to murder in the second degree.
(FN3) The defendant did not
object to the instructions on intoxication at trial. While the judge did not state explicitly that
voluntary intoxication could be the basis of reducing the degree of murder, he
correctly instructed the jurors that they could consider voluntary intoxication
on the premeditation and extreme atrocity or cruelty theories of murder in the
first degree. We have never required
more than a simple instruction that the jury may consider voluntary intoxication
when considering state of mind. See Commonwealth v. Sires, 413 Mass. 292,
299‑301, 596 N.E.2d 1018 (1992); Commonwealth v. Morgan, 422 Mass. 373,
376‑378, 663 N.E.2d 247 (1996). We
do not think that an explicit statement that intoxication could be the basis
for reducing the degree of murder from first to second degree becomes more
important because the judge described murder in the second degree before murder
in the first degree. We therefore
believe that a [424 Mass. 388] judge's explanation that the jury may
consider intoxication in evaluating whether an essential element of murder in
the first degree has been established is equivalent to an instruction that
intoxication may be considered in reducing the verdict from murder in the first
degree to murder in the second degree, and satisfies our requirements for
instructions on voluntary intoxication.
(FN4)
B
[5][6][7][8]
After Stanislawski's direct testimony, the prosecutor
introduced Stanislawski's statement to the police
incriminating Raymond. Had Raymond made
an objection at trial, Stanislawski's statement might
have been excluded as a prior consistent statement. (FN5)
See Walsh v. Wyman Lunch Co.,
244 Mass. 407, 409, 138 N.E. 389 (1923).
Having failed to object, however, "[t]he defendant cannot now
require that it be disregarded. Hearsay,
once admitted, may be weighed with the other evidence, and given any
evidentiary value which it may possess." Commonwealth v. Keevan, 400 Mass. 557, 562, 511 N.E.2d 534 (1987),
quoting Mahoney v. Harley Private Hosp.,
Inc., 279 Mass. 96, 100, 180 N.E. 723 (1932). Because this is an appeal from a conviction
of murder in the first degree, however, we must consider whether the jury's
consideration of the hearsay created a substantial likelihood of a miscarriage
of justice. G.L.
c. 278, § 33E. Cf. Keevan, supra at 562, 511 N.E.2d
534. We conclude that it did not. (FN6)
The jury heard the confession Raymond made at the station
house and heard the testimony of Stanislawski. Raymond attempted to retract his statement at
trial, indicating that he had been [424
Mass. 389] afraid of the police
officers when he made his statement. In
explaining why he gave the allegedly false confession to the police, he
explained that the police read a statement from Stanislawski
to him which stimulated his signing of a similar confession. Thus, the existence of this earlier statement
was an integral part of Raymond's own story.
In addition, even if the statement had not been initially introduced,
the defense might well have introduced the statement itself on cross‑examination
of Stanislawski.
The statement was different in some respects from Stanislawski's
trial testimony‑‑most importantly in the earlier statement he
denied raping the victim. At trial
defense counsel did indeed try to impeach Stanislawski's
credibility based on these inconsistencies.
Because the evidence against Raymond was overwhelming, because the
statement assisted the defense, and because the statement contained no new
information damaging to Raymond, there is no substantial likelihood of a
miscarriage of justice. (FN7) Furthermore, it is significant that the jury
did not need to choose between the testimony of Stanislawski
and the defendant's statement to have found an adequate basis for murder in the
first degree. Because the jury were
instructed on joint venture, Raymond could have been found guilty whether he or
Stanislawski did the actual killing and raping.
C
[9][10][11]
Raymond asserts several irregularities in the prosecutor's closing argument to
the jury. First, Raymond claims that
portions of the prosecutor's closing argument quoted below were inflammatory
and raised facts not in evidence:
"Sit
here and think about what happened to [the victim]. Think about her state of mind as she was
being raped by Stanislawski and Raymond, made a
decision at that time that she was helpless and decided she wasn't going to
fight....
"She was helpless. She couldn't move. Then, what did they do? Imagine, ladies and gentlemen, what was
going through [the victim's] mind in the dark up at High Rock."
[424
Mass. 390] Raymond maintains that
the evidence did not support the suggestion that the victim was conscious when
thrown into the water. Some of the
testimony regarding the strangulation, and their belief that she was dead or
unconscious when they threw her in the water, suggests she may have been
unconscious. There was substantial
contrary evidence as well. The medical
examiner testified that the victim was alive when she hit the water, but he did
not know if she was conscious. Stanislawski testified she was still kicking, and the
absence of bruising from the strangulation suggests that she might not have
been strangled enough to cause unconsciousness.
" 'In closing argument, counsel may argue the evidence and the fair
inferences which can be drawn from the evidence.' ...
'Counsel may also attempt to assist the jury in their task of analyzing,
evaluating, and applying evidence. Such
assistance includes suggestions by counsel as to what conclusions the jury
should draw from the evidence' " (citations omitted). Commonwealth v. Lamrini, 392 Mass. 427, 431, 467 N.E.2d 95 (1984). The evidence that the victim was conscious
was sufficient to justify the prosecutor's argument. Id. Contrast Commonwealth v. Smith, 387 Mass. 900,
910, 444 N.E.2d 374 (1983) (prosecutor suggesting "the victim felt 'the
flame come at him' " was improper where the medical examiner concluded the
victim was already dead before his body was burned). In this case, it was highly relevant to the
issue of extreme atrocity or cruelty whether the victim was conscious when she
was thrown in the water, Commonwealth v. Cunneen, 389
Mass. 216, 227, 449 N.E.2d 658 (1983), and the evidence could reasonably be
construed to suggest that the victim was alive and conscious as Raymond and Stanislawski planned and executed her murder. In such circumstances, we perceive no
error. Finally, the judge's
instructions, reprinted in the margin, (FN8) would have helped cure any misunderstanding.
Commonwealth v. Ferreira, 381 Mass. 306, 316, 409 N.E.2d 188 (1980).
[12]
[424 Mass. 391] Raymond further
complains that the prosecutor repeatedly told the jury that they were the
"conscience of the community," and that this argument was improper,
citing the Appeals Court's decision in
Commonwealth v. Mathews, 31 Mass.App.Ct. 564,
573, 581 N.E.2d 1304 (1991), cert. denied sub nom. Matthews v. Rakiey,
504 U.S. 922, 112 S.Ct. 1972, 118 L.Ed.2d 572 (1992)
(jurors, in a rape case, "bear no such burden; their role in a trial is limited to finding
the facts on the basis of the evidence, dispassionately and
impartially"). Where the extreme
atrocity or cruelty theory of murder in the first degree is in issue, however,
we have held that such an argument is "entirely proper. The jury represented the community's
conscience in assessing whether the killing had occurred with extreme atrocity
or cruelty." Commonwealth v. Fitzmeyer,
414 Mass. 540, 547, 609 N.E.2d 81 (1993).
[13][14] Raymond claims that the prosecutor
improperly vouched for Stanislawski's
credibility. In advocating that the jury
should believe Stanislawski, the prosecutor explained
that Stanislawski did not allege police intimidation
and that, although he lied initially to cover up the murder, he eventually
decided to tell the truth. The
prosecutor then stated, "He told you the truth when he
testified." Although Raymond's
trial counsel did not object, Raymond argues that this statement violates our
rule against the prosecutor's vouching for the credibility of a witness.
Commonwealth v. Thomas, 401 Mass. 109, 115‑116, 514 N.E.2d
1309 (1987). The statement questioned by
Raymond was the culmination of an argument made by the prosecutor that Stanislawski was a credible witness who should be believed. "Where credibility is at issue, it is
certainly proper for counsel to argue from the evidence why a witness should be
believed." Id. at 116, 514 N.E.2d 1309. We think in the context in which the
statement was made that the jury would likely have understood this statement
not as an assertion of the prosecutor's personal belief, but rather as a
statement of the logical conclusion of the prosecutor's argument. We acknowledge that the statement is
ambiguous, and we discourage the use of such an ambiguous statement in the
course of closing arguments. However,
"[m]ere[ ] unfortunate and unartful isolated
instances" are generally not enough to lead the [424 Mass. 392] jury to
improper inferences drawn from presumed personal knowledge of the prosecutor. Id.
at 115, 514 N.E.2d 1309. The absence of
objection from defense counsel further convinces us that, taken in the context,
the remark would not likely have misled the jury or prejudiced Raymond. See
Commonwealth v. Toro, 395 Mass. 354, 360, 480 N.E.2d 19 (1985);
Commonwealth v. Kozec, 399 Mass. 514, 518
n. 8, 505 N.E.2d 519 (1987). In
addition, we recognize that clarifying jury instructions may mitigate any
prejudice inherent in closing statements.
See Commonwealth v. Kozec, supra at 518, 505 N.E.2d 519. While the judge did not specifically point
out the ambiguity of the statement and correct it, he did emphatically state to
the jury:
"So,
if you ... take into account the appearance of the witness, the conduct of the
witness on the stand, the manner in which a witness testified or any
relationship to the parties or the outcome and the interest in the outcome and
the inconsistencies in the
testimony, you take all those factors into account and any others that you deem
relevant and then you determine the weight and credibility you give to a
particular witness's testimony."
We believe this unambiguous charge to the
jury that they must determine credibility on their own mitigated any prejudice
that might be derived from the prosecutor's statement.
III
[15] The gravamen
of the next set of Raymond's claims is that his statement to the police was not
voluntarily obtained and therefore should be suppressed. His first contention is that the police gave
him the warnings required by Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), too early, depriving him of an opportunity to make a knowing and
intelligent waiver of the rights those warnings explain. He claims that, because the police did not
inform him that he was a central suspect or that Stanislawski
had confessed before he received the warnings, he had no way of understanding
the implications of the waiver, citing the United States Supreme Court's
decision in Moran v. Burbine,
475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410
(1986), which requires that "the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the consequences[424 Mass. 393] of the decision to abandon
it." Even in that decision, the
Supreme Court rejected the expansive reading of Miranda which Raymond
proposes: "No doubt the additional
information would have been useful to respondent; perhaps even it might have affected his decision
to confess. But we have never read the
Constitution to require that the police supply a suspect with a flow of
information to help him calibrate his self‑interest in deciding whether
to speak or stand by his rights." Id. at 422, 106 S.Ct.
at 1141 (holding that police need not inform defendant who waived his Miranda
rights that his attorney had called). In Colorado v. Spring, 479 U.S. 564, 576,
107 S.Ct. 851, 858, 93 L.Ed.2d 954 (1987), the
Supreme Court stated that it had "never held that mere silence by law
enforcement officials as to the subject matter of an interrogation is
'trickery' sufficient to invalidate a suspect's waiver of Miranda rights, and
we expressly decline so to hold today."
The Court concluded that the defendant must understand the warnings
themselves and must not be tricked or coerced into abandoning those
rights. However, once the warnings are
read, the defendant presumably understands that he need not answer any
questions the police pose. Neither the
subject matter of the questioning nor the defendant's status as a suspect has
any bearing on whether the defendant understands that he need not answer the
questions. Id. at 567‑577, 107 S.Ct. at 853‑859.
Our cases do not require that a defendant must have information
regarding the crime about which he will be questioned or about police
suspicions before making a valid waiver of his Miranda rights.
Commonwealth v. Amazeen, 375 Mass. 73, 78,
375 N.E.2d 693 (1978) (no "additional requirement that police officers
must advise a defendant that he is charged with a crime or that he is a suspect
before a valid waiver may be obtained").
See Commonwealth v. Medeiros,
395 Mass. 336, 345, 479 N.E.2d 1371 (1985) (new warnings not required when
police decide to question defendant about an unrelated crime);
Commonwealth v. Hooks, 38 Mass.App.Ct.
301, 305, 647 N.E.2d 440 (1995). (FN9)
[16] Raymond next argues that, even if
the initial waiver of his [424 Mass.
394] Miranda rights were valid, he
invoked his right to remain silent before his confession. Once the suspect has invoked his right to
remain silent, the police may not continue the interrogation or
make repeated efforts to wear down the suspect in an attempt to make him change
his mind.
Miranda v. Arizona, supra at 473‑474, 86 S.Ct.
at 1627 ("If the individual indicates in any manner, at any time prior to
or during questioning, that he wishes to remain silent, the interrogation must
cease"). In this case, Raymond
initially denied his involvement and then crossed his arms and was silent,
shaking his head in response to the officers' questioning. These responses did not invoke Raymond's
right to remain silent, thus obligating the officers to cease their
questioning. In this context, the
silence and the shaking of the head do not suggest a desire not to respond and
to halt the questioning. Rather, the
implication of the head shaking is that Raymond wanted to deny the
allegations. The fact that he did not
respond orally could be attributed to nervousness or a desire to think through
his answer before he spoke. This
response is not sufficient to invoke the right to remain silent. See
Commonwealth v. Bradshaw, 385 Mass. 244, 265, 431 N.E.2d 880 (1982) (where
defendant cried and said, "I don't want to talk" in such a muffled
way the officers did not understand it did not invoke the right to remain
silent). Contrast Commonwealth v. Brant, 380 Mass. 876, 880, 406 N.E.2d 1021, cert.
denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301
(1980) (response of "no" to question whether defendant was willing to
continue without a lawyer invoked right to silence). In
Commonwealth v. Roberts, 407 Mass. 731, 733, 555 N.E.2d 588 (1990), the
defendant refused to answer some questions but responded to subsequent
questions. We held that by this conduct
the defendant showed an understanding of his rights, not a desire to stop the questioning. Similarly, Raymond's continuing responses to
the officers indicated that he wanted the process to continue while he denied
the allegations and decided whether or not to confess.
The defendant also maintains that the
statement was not made voluntarily and that its admission in evidence violates
both the Fifth Amendment to the United States Constitution and art. 12 of our
Declaration of Rights. Raymond claims [424 Mass. 395] two improper techniques which caused his confession to be
coerced: First, the officer suggested it
would be in his best interests to get out his side of the story to contradict Stanislawski.
Raymond argues that this advice was misleading because it suggested that
he should admit to felony‑murder which could not have been in his best
interests. Second, Raymond argues that
the officer's suggestion that his mother might be charged as an accessory after
the fact for lying about the whereabouts of her car (FN10) was coercive.
[17][18][19][20][21][22] In reviewing
whether a statement was made voluntarily, we accept the judge's subsidiary
findings of fact unless not warranted by the evidence. Commonwealth v. Tavares,
385 Mass. 140, 144‑145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102
S.Ct. 2967, 73 L.Ed.2d 1356 (1982). The judge's ultimate findings, while open for
review, are afforded "substantial deference." Id. at 145, 430 N.E.2d
1198, quoting Commonwealth v. White,
374 Mass. 132, 138, 371 N.E.2d 777 (1977), aff'd. by
an equally divided Court, 439 U.S. 280, 99 S.Ct. 712,
58 L.Ed.2d 519 (1978). The test for voluntariness of a confession is "whether, in light of
the totality of the circumstances surrounding the making of the statement, the
will of the defendant was overborne to the extent that the statement was not
the result of a free and voluntary act." Commonwealth v. Selby, 420
Mass. 656, 663, 651 N.E.2d 843 (1995).
(FN11) Misinformation by the police does not
necessarily render a confession involuntary. Id. at 664, 651 N.E.2d 843. See
Commonwealth v. Meehan, 377 Mass. 552, 563, 387 N.E.2d 527 (1979), cert.
dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d
185 (1980). We have recognized, however,
that police officers may not give an "assurance, express or implied, that
[confessing] will aid the defense or result in a lesser sentence."
Meehan, supra at 564, 387 N.E.2d 527. We believe that the officer suggesting that
the defendant should tell "his side of the story" fell short of the
assurance prohibited in Meehan and
was more closely related to [424
Mass. 396] "suggest[ing] broadly that it would be 'better' for a suspect to
tell the truth," which we have expressly allowed police officers to do. Id.
As to the possibility of charging Raymond's mother as an accessory, we agree
with the Appeals Court that "a motive to protect his mother is not
sufficient to find his confession involuntary." Commonwealth v. Berg, 37 Mass.App.Ct. 200, 206, 638 N.E.2d 1367 (1994). While the police may not expressly bargain
with the defendant over the release of other individuals or make threats of
arresting and charging others with no basis,
id., where this type of conduct is absent, the police may bring to the
defendant's attention the possibility that his relatives may be culpable. Id.
Cf. United States v. Jackson, 918
F.2d 236, 242 (1st Cir.1990); Allen v. McCotter,
804 F.2d 1362 (5th Cir.1986). This
defendant, at the time of the interrogation, appeared alert, free from the
influence of any drugs or alcohol, and free from any mental deficiency or
illness. We cannot say that any
influence these statements by the police may have had on the defendant
constitutes the sort of coercion that would override the will of the defendant
and render his confession involuntary.
IV
A
[23][24] Raymond appeals the judge's
sentencing him to consecutive life terms, one for rape and the other for murder
in the first degree. " '[W]henever the possibility exists that a jury might have
reached a verdict of murder ... on the basis of a felony‑murder theory, a
consecutive sentence may not be imposed for the underlying felony.'
Commonwealth v. Wilson, 381 Mass. 90, 124, 407 N.E.2d 1229
(1980). The appropriate remedy for such
duplicative convictions is to vacate both the conviction and the sentence on
the lesser included offense, and to affirm the sentence on the more serious
offense." Commonwealth v. Berry, 420 Mass. 95, 113,
648 N.E.2d 732 (1995). In this case, the
jury returned a special verdict which specified that Raymond was guilty under
all three theories of murder in the first degree, including felony‑murder. Had the jury returned a verdict only under
the theory of felony‑murder or even if the jury returned a general
verdict in which it was unclear under which theory it found the defendant
guilty, the Berry rule would apply
because the felony underlying the felony‑murder verdict might [424 Mass. 397] be nothing more than a lesser included offense of the felony‑murder. Where, as here, the jury expressly reached a
verdict of murder independent from felony‑murder because of both extreme
atrocity or cruelty and premeditation, then the rape is a separate and distinct
crime. Both the rape and the murder
convictions require "proof of an additional fact" not required by the
other.
Commonwealth v. Buckley, 410 Mass. 209, 222, 571 N.E.2d 609 (1991) (consecutive
sentences for murder committed with extreme atrocity or cruelty and armed
robbery not in error). Therefore,
consecutive sentences for murder and rape are not in error.
B
[25] In Raymond's first motion for a new
trial, he argued that, on the basis of an unsworn
statement purportedly made by Stanislawski recanting
his testimony and an affidavit by Raymond denying involvement, he was entitled
to a new trial. At the hearing on this
motion, Stanislawski refused to testify on the ground
that he might expose himself to perjury charges. The motion judge found neither the statement
from Stanislawski nor the affidavit from Raymond
credible and denied the motion. Raymond
filed a notice of appeal, but has not pressed this argument in his brief. We have long held that a new trial is not
required based on affidavits or testimony that a key prosecution witness
may have been lying, although we have said that such testimony warrants
"serious consideration from the motion judge." Commonwealth v. Watson, 377
Mass. 814, 837‑839, 388 N.E.2d 680 (1979). The determination whether such evidence
warrants a new trial is left to the sound discretion of the trial judge.
Commonwealth v. Waters, 410 Mass. 224, 230, 571 N.E.2d 399
(1991). We conclude that the judge did
not abuse his discretion on this record, particularly in light of the fact that
the statement by Stanislawski is unsworn
and lacking in any other indicia of reliability. See
Watson, supra; Commonwealth v. Tobin, 392 Mass. 604, 620, 467 N.E.2d 826
(1984).
C
Raymond has filed a second motion for a
new trial based on similar evidence.
This time he argues that a letter sent by Stanislawski
to Raymond's sister, who is also Stanislawski's ex‑girl
friend, states that Stanislawski knew he would be
able to plea bargain for murder in the second degree when he [424 Mass. 398] testified against Raymond in the trial. In the trial, Stanislawski
had testified that he received no promises from the Commonwealth nor assurances
from his own lawyer that he would receive a lesser penalty. Because this motion was filed shortly before
this appeal, it has not been heard by a motion judge below, and we therefore
remand it to the Superior Court on this issue.
Mass. R.Crim. P. 30(c)(7), 378 Mass. 900
(1979).
Raymond's second motion for a new trial
also claims that the Commonwealth employed improper pressure on Stanislawski by threatening to prosecute him for perjury if
he recanted his trial testimony. This
argument also has not been addressed before and should be considered on remand.
Raymond's other two claims, that Stanislawski's statement was improperly introduced at trial
and that the prosecutor improperly vouched for the credibility of Stanislawski, have been addressed in this opinion and need
not be reheard below.
D
We have reviewed the record as a whole
and have found no reason to exercise our extraordinary powers under G.L. c. 278, § 33E, either to order a new trial or to
reduce the verdict to murder in the second degree.
Accordingly, we affirm the convictions
and the denial of the first motion for a new trial, and remand the case to the
Superior Court for consideration of those arguments made in the second motion
for a new trial which raise new claims not yet decided in that court.
So
ordered.
(FN1.) The body was badly decomposed so that
some of this evidence could have been lost.
(FN2.) The trial in this case occurred forty‑two
months before the Sama
decision. While this is not dispositive, it is important to note that the judge did not
have the guidance of Sama
in giving these instructions.
(FN3.) The defendant's trial strategy was not
to claim intoxication but rather to deny being at the scene at all. He denied using drugs and alcohol on the day
in question. The judge considered not
even giving instructions on intoxication:
"This alcohol thing is kind of hard to handle, because there's
utterly no evidence in the case that he was under the influence of
alcohol." The judge gave the
instruction only after defense counsel argued that "the jury at least
should be made aware that it's within the realm of their consideration."
(FN4.) The judge also did not instruct the
jury that intoxication could be considered in determining whether the killing
was done with malice. Where the jury
were instructed on intoxication under deliberate premeditation and where the
jury found premeditation, the failure to instruct the jury they could consider
intoxication in deciding malice is not prejudicial. Commonwealth v. Wallace,
417 Mass. 126, 134, 627 N.E.2d 935 (1994).
(FN5.) Raymond did object based on
authenticity, but that objection is insufficient to preserve a hearsay
objection. See Commonwealth v. Cancel, 394 Mass. 567, 476 N.E.2d 610 (1985).
(FN6.) The Commonwealth's argument that the
statement was essentially the same as Stanislawski's
trial testimony and therefore was only cumulative evidence is not
conclusive. The statement was introduced
precisely because it does mirror Stanislawski's trial
testimony, and therefore might have a tendency to reinforce and corroborate Stanislawski's trial testimony. Therefore, the statement could have a
prejudicial effect even though it contained no new information implicating
Raymond.
(FN7.) It is important to note that Raymond
had a full opportunity to confront and cross‑examine Stanislawski
at trial.
(FN8.) The judge stated:
"Well, you are the
impartial evaluators. You are to put
yourself not in the position of anyone in the case but you are to determine the
facts in evidence, as I said, as impartial evaluators of the evidence that's
been presented to you. Now that, those
remarks concerning placing yourself in the victim's position, were directed, it
would appear, to the question of cruelty and atrocity. But, keep in mind you are exactly what I
said. You are independent evaluators of
the evidence as presented to you and you look at the evidence from no one's
point of view except that as an impartial arbitrator."
(FN9.)
Raymond cites decisions which discuss when the defendant is in custody and
undergoing interrogation that Miranda warnings are required.
Commonwealth v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154
(1986);
United States v. Britton, 68 F.3d 262 (8th Cir.1995), cert. denied,
517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474
(1996). His argument is that Miranda
warnings are not required until there is both custody and interrogation. He then argues that, because Raymond did not
realize he was in custody, Miranda warnings were too early. This argument and the cases cited are
inapposite. Those cases define the point
at which Miranda warnings must be given.
They do not suggest that Miranda warnings cannot be given earlier. We think that it is good practice, in fact,
for the police not to wait until the exact moment when the warnings are
constitutionally required.
(FN10.) Raymond's mother owned the car which
Raymond and Stanislawski used to pick up the victim.
(FN11.) The defendant asks us to adopt the
standard enunciated in Bram v. United
States, 168 U.S. 532, 542‑543, 18 S.Ct.
183, 187, 42 L.Ed. 568 (1897), which states that a
confession must not be "obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence...." The Court of Appeals for the First Circuit
has recognized that Bram, while never
explicitly overruled, has been "modified." United States v. Jackson,
918 F.2d 236, 241‑242 (1st Cir.1990).
We agree that "under current precedent [Bram ] does not state the standard for determining the voluntariness of a confession," Arizona v. Fulminante, 499 U.S. 279,
285, 111 S.Ct. 1246, 1251, 113 L.Ed.2d 302 (1991),
under the Fifth Amendment or under art. 12.
We do not find in art. 12 a requirement that we adopt the Bram standard.