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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Shine, 398
Supreme Judicial Court of Massachusetts,
Argued
Decided
Judy G. Zeprun, Asst. Dist. Atty. (Charles M. Campo, Jr.,
Carol A. Donovan, Committee for Public Counsel
Services,
Before [398
LIACOS, Justice.
On
November 14, 1983, a Suffolk County grand jury returned indictments charging
the defendant, John Shine, with murder in the first degree, and with armed
assault with [398 Mass. 643] intent to rob. Following trial, a jury returned a verdict of
guilty on each indictment. The defendant
was sentenced to the Massachusetts Correctional Institution at Walpole (now
Cedar Junction) for the term of his natural life on the murder conviction, and
for a concurrent term of eighteen to twenty years on the conviction of armed
assault with intent to rob. The defendant
appeals to this court pursuant to G.L. c. 278, § 33E (1984 ed.).
The
defendant raises numerous claims of error and seeks a new trial. Alternatively, he asks that we direct that
the degree of guilt be reduced to murder in the second degree and armed
assault. There is no ground for reversal
of the conviction of murder in the first degree. The record does not warrant our ordering
under § 33E either a new trial or a reduction in the degree of guilt. Additionally, we affirm the conviction of
armed assault with intent to rob for the reasons stated later in this opinion.
We
summarize the evidence. At approximately
The
defendant spent the evening before the stabbing with his girl friend, Allyson
Vaczy Hoyt, and Robert Sweeney, at whose home he had been staying since August
22 or 23. That evening, the defendant
tried unsuccessfully to borrow money from his girl friend. The defendant and Sweeney left Sweeney's home
at 1:15 A.M. and returned between 2:15 and 2:30 A.M. Hoyt testified that the defendant did not
appear to be intoxicated when he returned.
He took a knife out of his back pocket and [398 Mass. 644] placed
it on the kitchen window sill. The
defendant told Sweeney that he had lost Sweeney's watch; Sweeney asked, "Where did you lose
it?"; the defendant answered,
"Where do you think?" Hoyt
repeated Sweeney's question; the
defendant said, "Never mind."
Over the defendant's objection, Hoyt testified that the conversation
stood out in her mind because Sweeney and the defendant were "really upset
and nervous about losing a watch that wasn't very expensive or
anything." About 8 A.M., Sweeney,
Hoyt, and the defendant drove to the scene of the stabbing at the minipark.
At the
voir dire, (FN1) State trooper Lawrence Colson testified that he was searching
for
evidence, including a knife, in the minipark at approximately 8
A.M. He was dressed in plain clothes,
wearing his badge and a gun on his belt.
Sweeney approached him and asked whether he had found his watch. Trooper Colson told Sweeney that he was a
police officer; that there had been a
murder in the minipark the prior evening;
and that a watch had been found under the victim's body. Sweeney said that he knew nothing about a
murder. Pointing to Shine sitting in the
parked automobile with Hoyt, he said that he had loaned the watch to his friend
who had lost it in the park the night before.
The trooper asked Sweeney to stay where he was so that he could speak to
the defendant without Sweeney present.
As the trooper
approached, Shine stepped out of the automobile, and the trooper noticed that
his height, weight, hair color, and hair length fit witnesses' descriptions of
the victim's assailant. He also noticed
blood on the defendant's sneakers. The
trooper said, "Come here, kid," and they stepped to the rear of the
automobile. Asked, "What's all over
your shoes," the defendant answered, "Blood." Asked why he was in the [398 Mass. 645] park,
the defendant said that he came to look for a watch which he had lost at 9:30
the night before when he had gone to the park to "cool off" after an
argument with his girl friend.
Trooper
Colson asked the defendant to come with him to his automobile so that Colson
might ask him some questions. The
defendant said, "[A]ll right," and walked toward Colson's unmarked
cruiser. Later, Colson went inside a
neighbor's house to call the police station.
He did not tell the defendant to stay where he was, and he left the
defendant and Sweeney alone on the street.
The defendant testified that he did not see the badge on Colson's belt,
his holster, or his gun, and that he did not learn that Colson was a police
officer until "just before [they] went down to the police station."
Colson did
not advise the defendant of his rights or tell him he was under arrest at the
minipark. Colson testified that he had
not made up his mind to arrest or to take the defendant into custody at the
minipark, but that he would have taken him into custody had he tried to walk
away. The defendant and Sweeney both
agreed to go to the Revere police station.
Sweeney and the defendant's girl friend drove in Sweeney's
automobile; the defendant went‑‑unrestrained
and without protest‑‑in an unmarked police cruiser.
At the
police station, the defendant was advised of his Miranda rights. He agreed to talk to the officers and signed
a written waiver. At the outset of a
half‑hour, tape‑recorded statement, Trooper Colson told the
defendant that he was not under arrest and that he was free to leave at any
time, although the trooper admitted at trial that he was misleading the
defendant by his statements. In this
first statement, the defendant described and identified the watch which he had
lost the prior evening, admitted that he owned a knife which was in Sweeney's
kitchen, and denied that he had stabbed Cummings. He elaborated on, but did not contradict, the
statements he had made to Trooper Colson at the minipark regarding his
activities the previous evening. At the
end of this interview, the officers informed the defendant that he was under
arrest.
The
defendant then spoke with his girl friend alone, after a Revere police
inspector told him that they had conflicting statements[398 Mass. 646] from Sweeney and that, "if he wanted to
help himself, now is the time to tell the truth." Hoyt asked the defendant if he did it. After twice responding, "What do you
think," the defendant banged his head against the wall and said that
"Bob [Sweeney] had put him up to it," that he had done it, but that
he did not remember too much about it.
She told the defendant to go upstairs and tell the truth.
Two hours
after his first interview at the station, the defendant had an unrecorded
conversation with Officer Michael Cutillo.
The defendant was readvised by Officer Cutillo of his Miranda rights,
but nothing in the officer's handwritten notes
reflected the fact. The officer stated
that the defendant signed a waiver which had been "lost in the paper
work." The defendant said that he
would tell the truth. The defendant then
explained that he and Sweeney were out driving in Sweeney's automobile and
needed money to buy gas. Seeing a man on
foot who, in Sweeney's words, "look[ed] like he's an easy target,"
Sweeney said, "Let's roll him."
The defendant got out of the automobile and followed Cummings. He came up behind Cummings and tried to reach
into his pocket. The victim turned and
hit him with what the defendant thought was an elbow. According to the officer's testimony, the
defendant then said, "I think I stabbed him. I don't know.
I blacked out." The officer
then asked the defendant if he would be willing to make a statement on tape,
and he agreed.
Lieutenant
John MacDonald and Inspector Joseph Marshall testified that the defendant was
reinformed of his Miranda rights prior to the third and final fifteen‑minute
conversation, but the warnings do not appear on the tape recording. The defendant repeated what he had told
Officer Cutillo in the unrecorded conversation, adding that he had had two
drinks and had taken two capsules of what he thought were "speed" at
a bar before he and Sweeney spotted the victim.
He claimed that he could not remember if he did anything after the
victim elbowed him; and that the next
thing he remembered was running back across the highway and getting into
Sweeney's automobile. He stated that he
did not recall taking a knife out of his pocket; that he did not remember how he had gotten
blood [398 Mass. 647] on his arm; and that he and Sweeney returned to the park
the next morning to retrieve the watch for "sentimental
reasons." At the end of the
interview, the defendant agreed, in response to questions, that his rights had
been explained to him, that he had chosen to make the statement without an
attorney, and that no promises were made to him.
After the
defendant's second statement to police officers at the station, Officer Cutillo
obtained search warrants for Sweeney's home and automobile. After obtaining the warrants, Officer Cutillo
and Lt. MacDonald went to Sweeney's house and found a black‑handled
folding knife and towels, newspapers, and a face cloth, all stained with blood.
[1] 1. Admissibility of the defendant's statements
at the minipark. A. Miranda. The defendant argues that the judge erred in
admitting his statements to Trooper Colson at the minipark because he was
subjected to "custodial interrogation" without being informed of his
Miranda rights. The judge found that
these statements were not the result of custodial interrogation. There was no error.
Custodial
interrogation has been defined as "questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way."
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16
L.Ed.2d 694 (1966). At the time the
defendant made statements to Trooper Colson at the minipark, there had been no
" 'formal arrest or restraint on [defendant's] freedom of movement' of the
degree associated with a formal arrest." California v. Beheler, 463
U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495,
97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).
The defendant himself testified at the voir dire that he did not see
Colson's holster or gun, did not see the badge on Colson's belt, and first
learned that Colson was a police officer "just before [they] went down to
the police station."
The
defendant puts particular emphasis on Trooper Colson's testimony that the
defendant was not free to leave and that he would have been taken in custody
had he refused to talk at the minipark.
As matter of law, however, Trooper Colson's uncommunicated feelings are
irrelevant. "A policeman's
unarticulated[398 Mass. 648]
plan has no bearing on the question whether a suspect was 'in custody'
at a particular time." Berkemer v. McCarty, 468 U.S. 420, 442,
104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984). In that case, the United States Supreme Court
rejected a claim similar to the defendant's and found that there was no
"custodial interrogation," even though an officer "apparently
decided as soon as respondent stepped out of his car that respondent would be
taken into custody and charged ..., [because he] never communicated his
intention to respondent." Id.
See Commonwealth v. Podlaski,
377 Mass. 339, 343, 385 N.E.2d 1379 (1979).
As this
court stated in Commonwealth v. Bryant,
390 Mass. 729, 739 n. 11, 459 N.E.2d 792 (1984): "The Supreme Court has never endorsed a
subjective standard of 'custody,' and other courts have explicitly rejected
such a test. 'Although the officer may
have an intent to make an arrest, either formed prior to, or during the
questioning, this is not a factor in determining whether there is present
"in‑custody" questioning.
It is the officer's statements and acts, the surrounding circumstances,
gauged by a "reasonable man" test, which are determinative.' Lowe
v. United States, 407 F.2d 1391, 1397 (9th Cir.1969). United States v. Booth, 669
F.2d 1231, 1235 (9th Cir.1981). We
likewise adhere to an objective standard."
Questioning
the defendant next to his friend's automobile where he had been sitting with
his girl friend, who remained there during the conversation, is far from the
"incommunicado interrogation ... in a police‑dominated
atmosphere" which was the Supreme Court's concern in Miranda, supra 384 U.S. at 445, 86 S.Ct. at 1612. The defendant was not "thrust into an
unfamiliar atmosphere and run through menacing police interrogation
procedures." Id. at 457, 86 S.Ct. at 1618. He was questioned on a city street, a public
place where passersby could "witness the interaction."
Berkemer v. McCarty, supra 468 U.S. at 438, 104 S.Ct. at 3150. When the officer went to a neighbor's house
to call the Revere police station, he did not tell the defendant to stay where
he was, and he left the defendant and his friend Sweeney alone on the street.
At the
conclusion of the voir dire on the admissibility of the defendant's statements,
the judge made a subsidiary finding of fact that the questions which the police
asked the defendant [398 Mass. 649] at the park were "natural
preliminary questions designed to determine the defendant's identity and what
he knew about the crime." That
finding was warranted by the evidence and will not be disturbed by this court.
Commonwealth v. Mahnke, 368 Mass. 662, 667, 335 N.E.2d 660 (1975),
cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).
Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198
(1982). (FN2)
[2] B. Voluntariness of defendant's statements. The defendant asserts that, even if he was
not entitled to Miranda warnings at the minipark, his statements there must be
suppressed because the Commonwealth failed to establish that they were
voluntary beyond a reasonable doubt.
The
defendant claims that his statements were "the product of the coercive
situation in which he found himself," not the product of an intelligent
exercise of free will. To support his
claim, he points to his youth, limited education, and a sleepless night prior
to his morning encounter with Trooper Colson.
He also points to the absence of an automobile to enable him to leave
the area, or a home to which he could retreat;
to the trooper's words, "Come here, kid," and "harsh and
accusatory" questioning. However,
the defendant gave no indication at the time that he did not want to talk to
Trooper Colson. According to his own
testimony at the voir dire, when the trooper said that he wanted to ask him a
few questions, the defendant responded, "[A]ll right." At the conclusion of the voir dire, the
judge found "beyond a reasonable doubt that all statements made by this defendant
that have been heard by this Court on voir dire were made freely and
voluntarily with an understanding of the nature of the alleged statements. It was the product of a rational intellect
without fear, threats, coercion or force, either physical or psychological, and
without promise of reward." These
findings are warranted by the evidence, and we shall not disturb them. Commonwealth
v. White, 374 Mass. 132, 138, 371 N.E.2d 777 (1977).
[398 Mass. 650] [3] 2. Admissibility of
statements at the police station.
The defendant argues that all statements he made at the police station
were the direct consequence of his conversation with Trooper Colson at the
minipark and therefore must be suppressed as "fruit of the poisonous
tree" under Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Commonwealth v. Haas, 373 Mass. 545,
554, 369 N.E.2d 692 (1977). We need not
reach this argument because the defendant's statements at the minipark were
properly admitted. "The doctrine of
the fruit of the poisonous tree ... is not implicated if the tree is not
poisonous." Commonwealth v. Buchanan, 384 Mass. 103,
108, 423 N.E.2d 1005 (1981). Neither do
we reach the defendant's "cat‑out‑of‑the‑bag"
argument. See Commonwealth v. Amazeen, 375 Mass. 73, 79, 375 N.E.2d 693 (1978);
Commonwealth v. Haas, supra; Commonwealth v. Mahnke, supra 368 Mass.
at 686‑688, 335 N.E.2d 660. That
analysis applies to "cases wherein a subsequent statement is argued as
involuntary because it is the product of an earlier statement found to have
been 'coerced,' or itself 'involuntary.' " Commonwealth v. Watkins,
375 Mass. 472, 481, 379 N.E.2d 1040 (1978).
See Commonwealth v. Haas, supra. Because we conclude that the defendant's
statements at the minipark were neither coerced nor involuntary, the
defendant's cat‑out‑of‑the‑bag argument is not
supported by the facts. (FN3)
The defendant
next argues that the Commonwealth has failed to sustain its burden of proving
beyond a reasonable doubt that the waiver of his Miranda rights at the police
station was knowing, intelligent, and voluntary. See
Commonwealth v. Day, 387 Mass. 915, 920‑921, 444 N.E.2d 384
(1983). He also claims that statements
he made after receiving Miranda warnings were not [398 Mass. 651]
voluntary beyond a reasonable doubt. We
disagree. The judge found that the
defendant was advised completely of his Miranda rights and signed a waiver
form.
In
reviewing a judge's determination regarding a knowing waiver of Miranda rights
and voluntariness, we "grant substantial deference to the judge's ultimate
conclusions and we will not reject a judge's subsidiary findings if they are
warranted by the evidence." Commonwealth v. Benoit, 389 Mass. 411,
419, 451 N.E.2d 101 (1983). Commonwealth v. Williams, 388 Mass. 846,
851, 448 N.E.2d 1114 (1983). See also Commonwealth v. Mandile, 397 Mass. 410,
412‑413, 492 N.E.2d 74 (1986). The
defendant maintains that, by wrongly telling him that he was free to leave and
by not informing him that they intended to arrest him, his ability to assess
his situation and to respond intelligently was impaired by his youth and
limited education. But there was no
evidence that the defendant was not sufficiently intelligent or educated to
waive his rights or voluntarily to make a statement. To the contrary, the judge found that the
defendant, at the time he made the statements to the police officers, had ten
years of education, was an adult of at least average intelligence, and was
familiar with Miranda rights from prior experience. Although Colson did tell the defendant that
he was not under arrest at the outset of the police station interrogation, and
that he was "free to leave," an admittedly misleading statement, the
judge found that the police officers did not "trick" the defendant
into making any statements. There was no
evidence that Colson intended to deceive the defendant, or did deceive the defendant,
into making statements. Cf. Commonwealth v. Meehan, 377 Mass. 552,
563, 387 N.E.2d 527 (1979), cert. denied, 445 U.S. 39, 100 S.Ct. 1092, 63
L.Ed.2d 185 (1980); Commonwealth v. Jackson, 377 Mass. 319,
329, 386 N.E.2d 15 (1979).
[4] The
defendant further claims that his confessions were tainted by Inspector
Marshall's attempt to persuade him to confess by telling him that Sweeney had
given a contradictory version of the previous evening's events and that if he
wanted to help himself he should tell the truth while the assistant district
attorney was at the police station. The
judge, observing the demeanor of the defendant on the witness stand and
listening to his testimony, "disbelieve[d] the testimony of [the]
defendant[398 Mass. 652]
... that any promises or threats were made by [Inspector]
Marshall." He found that "no
trickery, no threats, no assurances expressed or implied that a statement by
the defendant would aid the defendant or result in a lesser sentence were given
by [Inspector] Joseph Marshall. Any
possible interpretation that [Inspector] Marshall's statement was an inducement
to the defendant is dissipated by the fact that the defendant was thereafter
given an opportunity to speak alone by his request to his girl friend, [Hoyt], after
which he decided to give a further statement to the police." Warranted by the evidence, these findings
cannot be disturbed by an appellate court. Commonwealth v. Mahnke, 368 Mass. 662,
667, 335 N.E.2d 660 (1975). "An
officer may suggest broadly that it would be 'better' for a suspect to tell the
truth, may indicate that the person's cooperation would be brought to the
attention of the public officials or others involved, or may state in general
terms that cooperation has been considered favorably by the courts in the
past. What is prohibited ... is an
assurance, express or implied, that it will aid the defense or result in a
lesser sentence." (Footnotes
omitted.)
Commonwealth v. Meehan, supra, 377 Mass. at 564, 387 N.E.2d
527. See also Commonwealth v. Mandile, supra 397 Mass. at 414‑415, 492
N.E.2d 74.
[5] The
defendant argues that all items, including a knife, blood‑stained
articles, and a denim jacket seized pursuant to warrants (FN4) to search
Sweeney's residence and automobile should have been suppressed as "fruits
of the poisonous tree." The
defendant filed no motion to suppress the knife, denim jacket, photographs of
Sweeney's residence and automobile, or blood‑stained items found in
Sweeney's house. At trial, he did not
object to the introduction of his jacket and stated that he had no objection to
the admission of the knife or photographs of the automobile or inside of
Sweeney's house. The blood‑stained
newspaper, towel, and facecloth were marked for identification [398 Mass. 653] but never introduced in evidence.
(FN5) Because the defendant made
no motion to suppress evidence before trial, did not seek a voir dire, or
object at trial, and stated that he had no objection to introduction of several
items, the question of the legality of the search is not before this court on
appeal.
Commonwealth v. Connolly, 356 Mass. 617, 624‑625, 255 N.E.2d
191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970). Where there is an illegal search or seizure,
the defendant seasonably must raise the issue by filing a motion to suppress
the evidence before trial. Rule 61 of
the Superior Court (1974). Additionally,
there is no reason to exercise our extraordinary power under G.L. c. 278, §
33E, where, even if the issue had been raised properly at trial, the
"fruit of the poisonous tree" argument fails because none of the
defendant's statements to police officers at the minipark or at the station
were obtained illegally, and no other defect in the search procedure has been
claimed.
[6][7] 3. Review pursuant to G.L. c. 278, § 33E. A.
Jury instruction on intoxication.
The defendant asks us to exercise our powers under G.L. c. 278, § 33E,
to order a new trial as to the murder conviction because the judge precluded
the jury from "consider[ing] evidence of the defendant's intoxication at
the time of the crime in deciding whether the Commonwealth has proved ...
specific intent beyond a reasonable doubt" when deliberating on the charge
of felony‑murder based on a homicide committed in the course of armed
assault with intent to rob. See Commonwealth v. Henson, 394 Mass. 584,
593, 476 N.E.2d 947 (1985).
Alternatively, the defendant asks this court to vacate the conviction of
armed assault with intent to rob and to strike so much of the jury's verdict as
finds him guilty on a felony‑murder theory. A new trial as to the murder indictment is
not warranted. The judge submitted
special questions to the jury on the murder indictment. See
Commonwealth v. Licciardi, 387 Mass. 670, 675‑677, 443 N.E.2d 386
(1982). The jury found the defendant
guilty of murder in the first degree on the basis of (1) deliberate
premeditation, (2) extreme atrocity or cruelty, and (3) felony‑ [398
Mass. 654] The conviction on two of the three grounds of
murder in the first degree is unaffected by the Henson rule, even though we stated in Commonwealth v. Ennis, 398 Mass. 170, 175, 497 N.E.2d 950 (1986),
that "Henson is ... fully
retroactive." We conclude that the
applicability of the Henson rule has
no bearing on the defendant's conviction of murder in the first degree because
the Henson instruction would not
apply to the jury's deliberations regarding murder committed with deliberately
premeditated malice aforethought or murder committed with extreme atrocity or
cruelty. (FN6)
[8] The
sentence for armed assault with intent to rob is concurrent with the life
sentence imposed for the conviction of murder in the first degree. See
Commonwealth v. Wilson, 381 Mass. 90, 123‑125, 407 N.E.2d 1229
(1980);
Commonwealth v. Hogan, 379 Mass. 190, 194, 396 N.E.2d 978
(1979). The defendant argues, however,
that this conviction should be reversed because the charge as to voluntary
intoxication was in error. (FN7)
As to the
crime of armed assault with intent to rob,
Henson would require an instruction regarding the relevance of voluntary
intoxication, if such an instruction had been requested by counsel for the
defendant. In his charge to the jury,
the judge stated, "Neither drunkenness nor drugs is a defense to the crime
of robbery because a person can entertain and put into effect the specific
intent to commit robbery even though drunk or under the influence of
drugs."
The
judge's instruction on the crime of armed assault with intent to rob was in
error under the Henson rule. The defendant's failure to object to the
instruction, as given, to request a proper instruction and to object to its
omission by the judge requires that we disturb the rulings below only if we
conclude [398 Mass. 655] that the error was of "a
type and seriousness which should lead us to reverse in the absence of a proper
exception." Commonwealth v. Freeman, 352 Mass. 556,
563‑564, 227 N.E.2d 3 (1967). We
review this aspect of the defendant's claim of error on the armed assault
indictment under the principle enunciated in
Commonwealth v. Freeman, supra, because we consider, at this point, a
conviction of a crime other than one of murder in the first degree. The test is whether there is a substantial
risk of a miscarriage of justice. Id. at 564, 227 N.E.2d 3.
We
consider the defendant's failure to object to be significant to our
consideration of this claim of error because, although Henson had not been decided at the time of trial, the relevance of
evidence of voluntary intoxication to the proof of specific intent under the Henson rule had been clearly
foreshadowed by our earlier decisions.
See, e.g., Commonwealth v.
Loretta, 386 Mass. 794, 799‑800, 438 N.E.2d 56 (1982);
Commonwealth v. Sheehan, 376 Mass. 765, 773‑775, 383 N.E.2d
1115 (1978). The criteria for
retroactive application of a common law principle, as set forth in Commonwealth v. Breese, 389 Mass. 540,
451 N.E.2d 413 (1983) (see Commonwealth
v. Ennis, supra, 398 Mass. at 174, 497 N.E.2d 950), warranted the
conclusion at the time of trial that evidence of voluntary intoxication should
be put to the jury, on a proper instruction, as relevant to proof of specific
intent to rob. Both Breese and the cases on which
Henson relied were decided prior to this trial. Clearly, then, the duty fell on the
defendant's counsel to raise before the trial judge the issue of voluntary
intoxication as to armed assault with intent to rob.
Considering
the conviction of armed assault with intent to rob under the standard of Commonwealth v. Freeman, supra, we conclude
there was no substantial risk of a miscarriage of justice. The evidence of guilt, already recounted, was
overwhelming. Additionally, the jury
having considered, and rejected, the defendant's claim of voluntary
intoxication on the issues of deliberate premeditation and extreme atrocity or
cruelty on the murder charge, it is unlikely that they would have given
credence to the same claim in considering the armed assault charge. The conviction of armed assault with intent
to rob is affirmed.
[398 Mass. 656] [9] B. Admission of opinion
testimony. The defendant claims
that the judge erred in allowing Hoyt to testify, over objection, (FN8) that a
conversation between Sweeney and the defendant stuck out in her mind because
"[t]hey were really upset and nervous about losing a watch that wasn't
very expensive or anything."
According to the defendant, the inference that the reported conversation
indicated unusual concern over the loss of a watch is an inference to be drawn
or rejected only by the jury.
Hoyt's
testimony about the defendant's demeanor was admissible as a summary
description of his "emotional, mental or physical condition." P.J. Liacos, Massachusetts Evidence 102 (5th
ed. 1981 & Supp.1985), citing, inter alia, Luz v. Stop & Shop, Inc., 348 Mass. 198, 208, 202 N.E.2d 771
(1964) (driver of automobile characterized as "confused");
Gilman v. Metropolitan Transit Auth., 345 Mass. 202, 205, 186 N.E.2d
454 (1962) (nervous condition of plaintiff described); Commonwealth v. Harrison,
342 Mass. 279, 285, 173 N.E.2d 87 (1961) (defendant described as
"angry" and "upset").
There was no error in admitting the testimony.
[10] C. Reopening of Commonwealth's case at voir
dire. The defendant argues that he
is entitled to a new trial because the judge abandoned his proper judicial role
and took on the role of the Commonwealth's advocate by suggesting that the
prosecutor reopen his case on voir dire to recall a witness to testify that
the defendant was advised of his rights under G.L. c. 276, § 33A, to use the
telephone at the station within one hour of his arrival for the purpose of
calling family or an attorney. The
defendant did not file a motion to suppress on the ground that he was not
advised of his right to make a telephone call.
It is
within the sound discretion of the judge to admit material evidence offered by
a party after he has rested. Duchesneau v. Jaskoviak, 360 Mass. 730,
734, 277 N.E.2d 507 (1972). The judge
did not abandon his judicial role by ensuring that evidence was presented of compliance
with G.L. c. 276, § 33A.
[398 Mass. 657] We have considered the entire case on the law and the evidence,
pursuant to our powers under G.L. c. 278, § 33E, and we conclude that the
verdict of guilty on the charge of murder in the first degree is against
neither the law nor the evidence. On the
defendant's conviction of murder in the first degree, the interests of justice
require neither a new trial nor the entry of a verdict of a lesser degree of
guilt. On the conviction of armed
assault with intent to rob, we affirm.
Judgments affirmed.
(FN1.) A midtrial voir dire was conducted to
determine the admissibility of five statements made by the defendant on August
27, 1983, including one to Trooper Lawrence Colson at the minipark at
approximately 8 A.M., three to police officers, and one to Hoyt at the Revere
police station later that day. Although
defense counsel did not file a motion to suppress the defendant's statements
for failure to give Miranda warnings, the court, as requested by the defendant,
treated the hearing as directed both to the Miranda issue and to the
voluntariness of the defendant's statements.
(FN2.)
The defendant also claims that, even if this conversation with Trooper Colson
was not a "custodial interrogation" under Federal law, the trooper's
failure to give Miranda warnings prior to the defendant's statements at the
minipark violated art. 12 of the Massachusetts Declaration of Rights. The defendant did not raise this issue at
trial, and we do not consider it.
(FN3.)
The defendant argues now, but did not claim at trial, that, even if the
interrogation at the minipark were noncustodial and even if the statements were
voluntary, the statements were inadmissible under art. 12 of the Massachusetts
Declaration of Rights. Amicus curiae
Massachusetts Association of Criminal Defense Lawyers submitted a brief to this
court which assumes that the encounter at the minipark was a custodial
interrogation and urges us to hold that art. 12 requires suppression of
statements made after an unwarned custodial interrogation unless the
Commonwealth demonstrates that subsequent statements are not "fruit of the
poisonous tree." As the argument
of the amicus relies on the premise that the first discussion was a custodial
interrogation, it becomes immaterial to this case.
(FN4.)
Officer Cutillo testified that he had prepared an affidavit for a search
warrant after the defendant's second stationhouse interrogation. The affidavit is not part of the record; there is nothing in the record to establish
whether any statements of the defendant were incorporated in the detective's
affidavit in support of his application for a search warrant.
(FN5.)
Defense counsel objected to their admission on the grounds that they were
stained with canine, not human, blood, and that nothing taken from the Sweeney
residence tied "into either the victim or this defendant."
(FN6.)
The judge properly charged the jury as to the effect of voluntary intoxication
on deliberate premeditation and extreme atrocity or cruelty. See
Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980);
Commonwealth v. Perry, 385 Mass. 639, 433 N.E.2d 639 (1982).
(FN7.)
There was sufficient evidence introduced at trial to raise the issue of the
effect of voluntary intoxication on the defendant's ability to form the
specific intent to rob necessary to find him guilty of armed assault with
intent to rob.
(FN8.)
After Hoyt testified as to the defendant's demeanor, the defendant made an
objection and a motion to strike which were overruled and denied
respectively. The judge admitted her
statement "for her state of mind";
he probably meant to admit it for his (defendant's) state of mind. Such a misstatement is harmless.