|
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. Silva, 388
Supreme Judicial Court of Massachusetts,
Argued
Decided
Francis M. O'Boy,
Phillip L. Weiner, Asst. Dist. Atty. (Patricia O. Ellis, Asst. Dist. Atty., with
him), for the Commonwealth.
Before HENNESSEY,
C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.
HENNESSEY, Chief Justice.
The
defendant, James E. Silva, Jr., was indicted by a
On this
appeal the defendant claims error in that (1) the judge denied his motion to
suppress certain statements he had made to the police; (2) the judge did not instruct the jury that
the felony‑murder rule applies only if the jurors find, from the
circumstances of the underlying felony, that the defendant consciously
disregarded risk to human life; (3) the
judge failed to instruct the jury with regard to the defendant's belief as to
whether the victim was alive or dead; [388 Mass. 497] (4) the judge did not
exclude evidence of other crimes; and
(5) the prosecutor made improper remarks during closing argument. The defendant also argues that he should
receive relief under G.L. c. 278, § 33E.
We conclude that there is no reversible error, and that the defendant is
not entitled to relief under § 33E.
Accordingly, we affirm the judgments.
On January
12, 1979, Beatrice Miller met her sixty‑two year old mother, Diane Dion,
and drove her to a doctor's appointment, then to the supermarket to do some
shopping, and finally to Haskins Pharmacy in Norton. At approximately
The
following day, the vehicle in which the victim was abducted was found in Norton
on the grounds of the
On January
14, 1979, in the late evening hours, the defendant was brought to the North
Attleborough police station for questioning regarding his possible involvement
in the victim's death. At approximately
12:05 A.M., Bruce Gordon, a State police trooper, advised the defendant of his Miranda rights. Gordon also informed the defendant that, if
he agreed to speak, the conversation would cease at any time at his
request. The defendant responded that he
understood[388 Mass. 498]
his rights and was willing to speak.
Gordon then presented a North Attleborough police department waiver of
rights form to the defendant and asked him to read it. After the defendant finished reading the
form, Gordon asked him whether he understood it. The defendant responded affirmatively and
signed the form as Gordon requested him to do.
(FN1) In addition to signing his
name, he was asked to write on the waiver form that he was a
"homicide" suspect, which he did.
Gordon questioned the defendant for approximately ten to fifteen
minutes. The defendant admitted that on
the morning of January 12, 1979, he was standing in front of Haskins Pharmacy
but denied any role in the kidnapping and death of the victim.
Gordon
then asked the defendant, who had not yet been placed under arrest, whether he
was willing to accompany the police officers to the Norton police department
for further questioning. The defendant
agreed to go with them. During the trip
to the Norton police department, which lasted approximately twenty minutes, the
defendant sat in the rear of an unmarked police cruiser with Detective
Brugliera while two State police troopers sat in the front seat. No questioning occurred during this trip.
Once at
the police station, Detective Brugliera sat alone with the defendant and
inquired whether he understood his
Miranda rights as previously given and whether he was still willing to
speak with him. The defendant responded
affirmatively to both questions.
Brugliera also told the defendant that he did not have to speak, and the
defendant responded that he understood that and was still willing to
speak. Brugliera then confronted the
defendant with evidence implicating him in the crimes, including the facts that
the defendant's father saw him standing in front of the pharmacy on January 12,
that the man whom the victim's [388
Mass. 499] daughter had seen drive
off with her mother wore a coat similar to that of the defendant, and that the
defendant was familiar with one of the burned vehicles found on the school
grounds.
The
defendant made incriminating statements.
He stated that he was standing in front of the pharmacy when he observed
a vehicle with its engine running parked next to the pharmacy. After the driver left the vehicle and entered
the pharmacy, he approached the vehicle, opened the door, and entered. As he started to shift the vehicle into gear,
he heard a woman say, "You're in the wrong car." He turned toward the passenger seat and saw
a woman, seated next to him, whom he later learned to be Diane Dion. The defendant shifted the vehicle into reverse
and drove through the pharmacy's parking lot and onto the street. The defendant stated that he continued to
drive and that as he drove he spoke with the victim, who told him that she
suffered from high blood pressure and had just returned from the doctor's
office. As the defendant drove through
the grounds of the Paul A. Dever School, the victim started to slump forward
and then passed out. While the defendant
was driving, the victim kept falling onto him, so he stopped the vehicle. He attempted unsuccessfully to revive her
using mouth‑to‑mouth resuscitation.
He then removed grocery bags from the vehicle's back seat and placed the
victim there.
The
defendant continued to drive through the school property, and at some point
placed the victim in the trunk of the car.
He stated that when he did so he was not certain whether she was dead or
alive. He then drove the car onto a cart
path area. He parked the vehicle to the
right of two burned vehicles, which he already knew were there. He then removed papers from the glove
compartment and a blanket from the front seat, and placed them on the back
seat. He set the blanket and papers on
fire and remained at the scene for approximately five minutes until the vehicle
became engulfed in flames. He then left
the area and returned home.
After
speaking with Brugliera, the defendant, at approximately 2 A.M., gave a similar
statement to Lieutenant [388 Mass.
500] Clarkson of the State
police. The defendant stated further,
however, that he had gone to the pharmacy to steal an automobile to go
"joy‑riding."
A short
while later the defendant spoke with his parents. After his parents left, the defendant asked
to speak with Benton Keene, the chief of police. The defendant knew that the victim was
Keene's mother‑in‑law and wanted to tell him what had happened in
his own words. The defendant then made
essentially the same statement to Keene.
After the
defendant spoke with Keene, the police assembled at approximately 3 A.M. to
conduct a stenographic interview with the defendant. At this time Clarkson readvised the defendant
of his Miranda rights, and the
defendant indicated that he desired to speak with an attorney. Since the police continued the interview
notwithstanding the defendant's
assertion of his right to speak with an attorney, the judge suppressed the
substance of this interview and did not allow its use at trial.
At trial,
the defendant basically restated the information which he had given to
Brugliera. He also testified that he
initially took the vehicle only for a "joy ride." He stated that, after he became aware of the
victim's presence in the vehicle, he became scared, began driving, panicked
and, consequently, did not stop the vehicle.
The defendant further stated that, after the victim became unconscious,
he examined her pulse and did not believe that she was still breathing. He testified that he thought she was dead
when he put her in the trunk. The
defendant admitted that he had taken other vehicles for "joy rides,"
had subsequently stolen some of their parts, and had eventually sold these
parts. He also admitted that he had
burned the other vehicles located in the cart path area of the school.
[1][2] 1.
The defendant's first argument is that the judge erred in denying his motion to
suppress statements made to police officers, since the defendant had not
knowingly and intelligently waived his
Miranda rights. We disagree. It is clear that the Commonwealth bears a
heavy burden in demonstrating that the defendant made a knowing, intelligent, [388 Mass. 501] and voluntary waiver of his
Miranda rights. Miranda v. Arizona, 384 U.S. 436, 475, 86
S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Commonwealth v. Murray, 359 Mass. 541,
546, 269 N.E.2d 641 (1971). To determine
whether to admit a defendant's statements, a court must examine the totality of
the circumstances, including the characteristics of the accused and the details
of the interrogation. Commonwealth v. Tavares, 385 Mass. 140,
146, 430 N.E.2d 1198 (1982), citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36
L.Ed.2d 854 (1973). See Commonwealth v. Daniels, 366 Mass. 601,
606, 321 N.E.2d 822 (1975).
The judge
denied the defendant's motion to suppress those statements made by the
defendant before the hour of 3 A.M. on January 15. (FN2)
The judge specifically concluded that at the North Attleborough police
station the defendant had been advised of his Miranda rights and had stated, both in oral and written
statements, that he understood them. The
judge found further that at the Norton police station the defendant agreed to
waive his rights and speak with the officers, and that, even though the
defendant was not warned of his rights again, "there was no significant
lapse of time between the warnings and the defendant's inculpatory
statements." The judge determined
further that the defendant possessed no personal characteristics which rendered
him particularly susceptible to police pressure. See
Tavares, supra 385 Mass. at 145, 430 N.E.2d 1198. Specifically, he found that the defendant,
age seventeen, had received better than average grades in school, was
experienced with the law, and was not impaired mentally by either drugs or
alcohol at the time of the interviews with the police. Finally, the judge determined that there was
no evidence that the police used trickery or promises of leniency, and that the
police did not make misrepresentations or deliberate falsehoods during the
questioning.
[3][4][5]
The judge's subsidiary findings with regard to his determination that a waiver
was knowing and voluntary will not be disturbed on appeal if the findings are
warranted by the [388 Mass. 502] evidence. Tavares, supra at 144‑145,
430 N.E.2d 1198. Commonwealth v. Santo, 375 Mass. 299,
303, 376 N.E.2d 866 (1978). Furthermore,
a trial judge's ultimate conclusion of a voluntary waiver is entitled to
deference. Tavares, supra 385 Mass. at 145, 430
N.E.2d 1198. Commonwealth v. White, 374 Mass. 132,
138, 371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519
(1978). In performing our appellate
function, however, we must make an independent determination as to the correctness of the judge's
conclusion that a waiver was knowingly, voluntarily, and intelligently made in
light of the facts as found by him. Tavares, supra. See
Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 1241, 51 L.Ed.2d 424
(1977). (FN3)
[6][7] The
defendant was initially advised of his
Miranda rights at approximately 12:05 A.M., at which time he waived them,
and was not readvised of his rights until approximately 3 A.M. "We recognize that 'Miranda warnings, once given, are not to be accorded unlimited
efficacy or perpetuity.' " Commonwealth v. Cruz, 373 Mass. 676, 687,
369 N.E.2d 996 (1977), quoting United
States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir.1970), cert. denied, 401
U.S. 1013, 91 S.Ct. 1252, 28 L.Ed.2d 550 (1971). Nevertheless, in this case the judge
permissibly concluded that, in light of all the circumstances, the lapse of
time was not significant and did not negate the validity of the defendant's
knowing, voluntary, and intelligent waiver.
[8][9]
There is ample evidence to support the judge's ruling. The defendant received the Miranda warnings and understood
them. See Commonwealth v. Williams, 378 Mass. 217, 225, 391 N.E.2d 1202
(1979). Further, the police attempted to
ascertain whether the defendant wanted to waive his rights before they
questioned him. See id. In each instance, the
defendant answered affirmatively and chose to make a statement. His willingness to talk is evidence of
waiver. See id. at 225‑226, 391 N.E.2d 1202. With regard to statements made by the
defendant to Police Chief Keene, since it was the defendant [388 Mass. 503] who
actively sought to speak with Keene, repetition of Miranda warnings was not required.
See Commonwealth v. Black, 4
Mass.App. 512, 516, 351 N.E.2d 859 (1976).
In addition, the interviewing sessions do not reveal any excessive
police pressure or unfair tactics. See Commonwealth v. Davis, 380 Mass. 1, ‑‑‑
‑ ‑‑‑, 401 N.E.2d 811 (1980) ( "interview [was]
logical and orderly, free of hostility, coercion, or threats");
Commonwealth v. Borodine, 371 Mass. 1, 6, 353 N.E.2d 649 (1976),
cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977) (
"questioning was fair, dignified, and restrained"). Nor was the defendant physically restrained
in any way. See Commonwealth v. Cruz, supra 373 Mass. at 689, 369 N.E.2d 996. Indeed, Detective Brugliera asked the
defendant several times whether he would like to speak to his parents, and the
defendant indicated repeatedly that he did not desire to do so. The circumstances support the judge's
determination that the lapse of time was not significant and that the defendant
knowingly, voluntarily, and intelligently waived his Miranda rights. Cf. Commonwealth v. Cruz, supra at 687‑689,
369 N.E.2d 996 (initial Miranda
warnings found sufficient to support a waiver of approximately three and one‑half
hours);
Commonwealth v. Valliere, 366 Mass. 479, 484, 487, 321 N.E.2d 625
(1974) (initial Miranda warnings
found sufficient to support a waiver occurring over two hours later).
2. The
defendant also asserts that the judgment as to murder should be reversed
because the judge, in instructing on the issue of felony‑murder, gave no
instruction that the jury must find that the defendant acted with a conscious
disregard for human life. We disagree.
[10] The
felony‑murder rule, defined by common law, is that a homicide committed
during the commission or attempted commission of a felony is murder.
Commonwealth v. Moran, 387 Mass. 644, 648, 442 N.E.2d 399
(1982). In Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400
(1982), we noted that "[t]he effect of the felony‑murder rule is to
substitute the intent to commit the underlying felony for the malice
aforethought required for murder." We also determined in Matchett, however, that the use of the felony‑murder rule
was limited by the principle that "criminal liability for causing a
particular[388 Mass. 504]
result is not justified in the absence of some culpable mental state in
respect to that result." Id. at 507, 436 N.E.2d 400, quoting
Gegan, Criminal Homicide in the Revised New York Penal Law, 12 N.Y.L.F. 565,
586 (1966). We concluded that "[a]
felony‑murder rule that punishes [as murder] all homicides committed in
the perpetration of a felony whether the death is intentional, unintentional or
accidental, without the necessity of proving the relation of the perpetrator's
state of mind to the homicide, violates [this] most fundamental principle
...." Matchett, supra at 506‑507, 436
N.E.2d 400. We therefore held in Matchett that, because the crime of
extortion "may be committed in a way not inherently dangerous to human
life," there could be no conviction for felony‑murder where the
underlying felony was extortion unless the jury found that the extortion
involved circumstances demonstrating the defendant's conscious disregard of the
risk to human life. Id. at 508, 436 N.E.2d 400.
In Commonwealth v. Moran, 387 Mass. 644,
650‑651, 442 N.E.2d 399 (1982), we extended the holding of Matchett to cases where a felony‑murder
is based on the underlying felony of unarmed robbery. We concluded that since "[u]narmed
robbery is not inherently dangerous to human life ... [p]unishing as murder
homicides that result from such crimes without proof of a culpable mental state
with respect to the killing violates the
Matchett principle." Id. 386 Mass. at 651, 436 N.E.2d
400. Thus, we held that the felony‑murder
rule applies in cases where the underlying felony is unarmed robbery "only
if the jury find from the circumstances of the felony that the defendant
consciously disregarded risk to human life." Id.
In this
case the judge instructed the jury that "when a Defendant by some act done
in the commission or attempted commission of some crime of the degree of a
felony, causes the death of a human being, the killing is considered to be with
malice aforethought and is murder and not merely manslaughter. The theory is that the intent to commit some
other felony supplies, as a matter of law, the malice aforethought necessary to
make a killing murder." If the Matchett rule were applied to this
case, there would be error in [388
Mass. 505] the charge, because the
judge gave no instruction that the jury must find conscious disregard of risk
to human life in order to apply the felony‑murder rule.
Our basic
consideration is whether we shall extend the
Matchett principle to cases where the underlying felony is larceny of a
motor vehicle under G.L. c. 266, § 28, or kidnapping under G.L. c. 265, §
26. We think it is clear that the crime
of larceny of a motor vehicle need not be dangerous to life. The question is closer as to the crime of
kidnapping, and we leave that issue to another day and another case. However, for the purposes of this appeal, we
assume that the Matchett rule also
applies to the crime of kidnapping. The
further question is whether the Matchett
rule should be applied retrospectively here.
The defendant did not object to the judge's instructions on felony‑murder. Since trial of this case was completed before Matchett or Moran was decided, the judge's charge was free of error when it
was given. However, the defendant here
relies upon language in Moran,4 387
Mass. at 651 n. 3, 442 N.E.2d 399, where we specifically determined that our
ruling in that case would apply to cases that were pending on direct appeal or
as to which the time for direct appeal had not expired on the date of the Moran decision.
It is
argued that this case clearly falls within the limited class of cases which,
under Moran, is to be afforded
retrospective application of the Matchett
principle. Even if we accept that
argument, a per se reversal of this
case does not follow. We apply, rather,
the miscarriage of justice standard of review.
(FN5)
[388 Mass. 506] [11] Measuring by that standard, we decline to reverse the
conviction of murder in the second degree.
It was shown, for the most part by the defendant's admissions to police,
that the defendant entered the automobile without noticing that a woman was
seated on the passenger's side of the front seat. Even if this unlikely claim were credited by
the jury, it was also shown that the defendant had immediate opportunity to
withdraw ("You're in the wrong car").
Nevertheless, he chose to drive away, and it can reasonably be inferred
that the victim's life was then in danger from his knowledge that she was a
potential identifying witness against him.
He continued to drive after she told him that she suffered from high
blood pressure and had just returned from the doctor's office. He had already driven into the property of
the Paul A. Dever School, toward the place where he knew other burned vehicles
were located, when the woman became unconscious. Although he stated that he tried to revive her
by mouth‑to‑mouth resuscitation, he was not certain whether she was
dead or alive when he placed her in the trunk of the car and then burned the
vehicle. (FN6) Medical testimony showed that the victim was
alive when the fire started and died as a result of the fire.
We
conclude that, even without application of the felony‑murder doctrine,
the proof of malice was overwhelming, as established by the defendant's
admissions, and that, appraised by the miscarriage of justice standard, he is
not entitled to a reversal of the murder conviction based on retrospective
application of the Matchett‑Moran
principle.
[12][13][14]
3. The defendant argues that the trial judge instructed the jury incorrectly by
refusing to make an explicit reference to the specific facts on which he bases
his defense. We disagree. Defense counsel requested that the judge, in
instructing the jury on involuntary manslaughter, explain the issue of wanton
and reckless conduct by referring to the defendant's belief as to whether the
victim was dead or alive [388 Mass.
507] when he placed her in the
trunk. It is within the trial judge's
discretion, however, to choose the form of expression best adapted to make the
law intelligible to the jurors. Commonwealth v. Cobb, 379 Mass. 456,
467, 405 N.E.2d 97 (1980). Accordingly,
the trial judge is not bound to instruct either "in the exact language of
particular requests for instructions ... [or] on every subsidiary fact and
possible inference." Commonwealth v. Chasson, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1981) 724, 729, 423 N.E.2d 306. See
Commonwealth v. Harris, 376 Mass. 201, 208‑209, 380 N.E.2d 642
(1978);
Commonwealth v. Therrien, 371 Mass. 203, 206, 355 N.E.2d 913 (1976);
Commonwealth v. Edmonds, 365 Mass. 496, 506, 313 N.E.2d 429
(1974). In this case, reading the
instructions as a whole, we conclude that they were not misleading and that
they fairly permitted the jury to consider the issue of involuntary manslaughter. See
Chasson, supra.
[15][16]
4. The defendant also asserts that the judge erred in admitting evidence of
other crimes. Evidence of prior criminal
activity may be admitted to establish "knowledge, intent, motive, [and]
method." Commonwealth v. King, 387 Mass. 464, 469,
441 N.E.2d 248 (1982), quoting
Commonwealth v. Imbruglia, 377 Mass. 682, 695, 387 N.E.2d 559 (1979). "The test of admissibility is whether
the relevance of the evidence outweighs its possible prejudicial effect."
Commonwealth v. Cefalo, ‑‑‑ Mass. ‑‑‑,
‑‑‑, Mass.Adv.Sh.
(1980) 1877, 1894, 409 N.E.2d 719.
[17] The
defendant was charged, inter alia, with larceny of a motor vehicle. The defendant maintained that he only
intended to take the vehicle for a "joy ride." Accordingly, the Commonwealth attempted to
prove that the defendant possessed the necessary intent to commit larceny by
introducing testimony indicating that the defendant had stolen other vehicles,
taken them to the same location, and burned them. Specifically, the Commonwealth brought Dennis
Nixon, a friend of the defendant, to the stand so that he would state, as he
supposedly had in pretrial statements, that the defendant had told him that he
had taken these other vehicles to the cart path area and burned them. Nixon, however, did not answer the
prosecutor's questions as the prosecutor had represented to the judge that he
would.
[388 Mass. 508] Rather,
Nixon stated merely that the defendant had told him that the vehicles at the
cart path area were stolen. Nixon stated
further that the defendant had never told him that he had stolen the cars or
that he had burned them. Nevertheless,
the evidence that the defendant was aware that the destination to which he
drove with the victim was a place where other stolen vehicles had been
concealed and burned was relevant to the proof of his larcenous intent. Further, after it became evident that the
testimony of the witness did not fulfil the expectations of the prosecutor as
represented to the judge, there was no motion by the defense to strike the testimony. The admission of the evidence was within the
judge's discretion.
5. We also
reject the defendant's assertion that certain statements made by the prosecutor
in his closing argument were improper.
The defendant first argues that the prosecutor improperly analogized the
defendant's carrying of the body of the victim from the passenger area to the
trunk to carrying a live body or a baby.
The purpose of the prosecutor's analogy was to refute the defendant's claim
that he believed that the victim was dead when he placed her in the trunk. The prosecutor was attempting to demonstrate
to the jury that the defendant must have felt the victim breathing, must have
known she was alive.
[18][19][20]
We do not think the analogy was improper.
We note that "[i]t is proper for counsel to use analogy, example
and hypothesis as an aid to effective and aggressive argument."
Leone v. Doran, 363 Mass. 1, 18, 292 N.E.2d 19, modified on other
grounds, 363 Mass. 886, 297 N.E.2d 493 (1973).
See also Commonwealth v. Connolly,
308 Mass. 481, 496, 33 N.E.2d 303 (1941).
Furthermore, counsel may argue facts derived from the jurors' common
knowledge and experience. Commonwealth v. Fitzgerald, 376 Mass.
402, 420, 381 N.E.2d 123 (1978). Commonwealth v. McColl, 375 Mass. 316,
323, 376 N.E.2d 562 (1978).
[21][22][23]
We also disagree with the defendant's assertion that the prosecutor improperly
interjected his personal belief as to premeditation. It is clear that a prosecutor, in argument,
may not express personal belief in the defendant's guilt or [388 Mass. 509] comment
on facts not in evidence. Commonwealth v. DeChristoforo, 360 Mass.
531, 537, 277 N.E.2d 100 (1971). In this
case, however, the prosecutor's comment was preceded and followed by recounting
the evidence at trial which supported an inference of premeditation. We emphasize that "[c]ounsel has the
right to argue inferences from the evidence favorable to his case, and the
precise form should not control unless it tends to lead the jury to an improper
inference not from the evidence but from the apparent personal knowledge of the
attorney." Commonwealth v. Nordstrom, 364 Mass. 310,
315, 303 N.E.2d 711 (1973). In this
case, no assertion of personal knowledge occurred.
Since the
offenses here were committed before July 1, 1979 (see Commonwealth v. Davis, 380 Mass. 1, ‑‑‑, ‑‑‑,
401 N.E.2d 811 [1980] ), the defendant is entitled to, and we have accorded,
the special review of G.L. c. 278, § 33E.
No reason appears for reducing the murder conviction or granting a new
trial.
Judgments affirmed.
O'CONNOR,
Justice (dissenting).
The judge
instructed the jury that, "when a Defendant, by some act done in the commission or attempted commission of
some crime of the degree of a felony, causes the death of a human being, the
killing is considered to be with malice aforethought and is murder and not
merely manslaughter. The theory is that
the intent to commit some other felony supplies, as a matter of law, the malice
aforethought necessary to make a killing murder." The court acknowledges that "[i]f the Matchett rule were applied to this
case, there would be error in the charge, because the judge gave no instruction
that the jury must find conscious disregard of risk to human life in order to
apply the felony‑murder rule." Supra at 653. The court then assumes that Commonwealth v. Matchett, 386 Mass.
492, 436 N.E.2d 400 (1982), does apply. Supra at 653. Given that assumption, there was error in the
jury instruction with [388 Mass. 510] regard to felony‑murder. However, applying a miscarriage of justice
standard of review, the court declines to reverse the conviction of murder in
the second degree.
For the
purpose of this opinion, I accept the "miscarriage of justice"
standard of review. However, measuring
by that standard, I believe that the murder conviction should be reversed.
The court
reasons that affirming the defendant's conviction does not risk a miscarriage
of justice because, in its view, "even without application of the felony‑murder
doctrine, the proof of malice was overwhelming." Supra at 654. This statement is susceptible to several
different interpretations. The court's
rationale could be that, since the evidence of malice, unrelated to the felony‑murder
doctrine, was overwhelming: (1) the jury
must have based its verdict on a finding of that type of malice (hereinafter
"traditional malice"), so there is little risk that the verdict was
influenced by the erroneous felony‑murder instruction; (2) if the jury had addressed the question of
traditional malice, they would have found it;
(3) the court itself is satisfied that there was traditional
malice; (4) if the correct instruction
had been given, the jury would have found that the defendant consciously
disregarded the risk to the victim's life, or (5) the court itself is satisfied
that the defendant consciously disregarded the risk to the victim's life. None of these rationales support the court's
decision to affirm the conviction.
The
defendant's murder conviction should be affirmed only if the jury, applying
correct principles of law, determined that the Commonwealth had proved every
element of murder beyond a reasonable doubt.
The court should not speculate as to whether the jury would have found traditional
malice, or as to whether the jury would have found conscious disregard of risk
to human life, if they had addressed those issues. Nor should the court substitute its judgment
for that of the jury on questions of fact, and uphold the conviction because
the court thinks the defendant is guilty.
The only appropriate question for this court is [388 Mass. 511] whether
there is a substantial risk that the verdict was based on the erroneous felony‑murder
instruction. I believe that there is
such a risk and that the conviction should not be affirmed.
It is just
as likely that the verdict was based on an application of the felony‑murder
doctrine, as it is that the verdict was based on a finding of traditional
malice. Even if the evidence of
traditional malice was "overwhelming," as the court asserts, it was
no more overwhelming than was the evidence that the defendant caused the
victim's death in the commission of larceny of a motor vehicle or
kidnapping. That the verdict was based
on the felony‑murder rule is suggested, at least, by the fact that the
jury found the defendant guilty of murder in the second degree, not in the
first degree. We cannot be sure how the
jury arrived at their verdict, and this is the basis of my dissent, but, if the
jury based their verdict on traditional malice, it is difficult to understand
why they did not also find deliberate premeditation and return a verdict of
murder in the first degree.
The
Commonwealth's evidence of traditional malice was not overwhelming, when
considered in conjunction with the defendant's testimony. The court correctly characterizes the
defendant's testimony as basically a
restatement of the information he had given to Officer Brugliera.
Supra at 651. The defendant
stated at trial that he became scared, began driving, panicked and, consequently,
did not stop the vehicle. He further
stated that the victim became unconscious, and he examined her pulse and did
not believe that she was still breathing.
He told the jury that he thought she was dead when he put her in the
trunk. There is no indication that the
jury rejected the defendant's testimony.
If believed, the testimony would preclude a finding of traditional
malice. Since the jury were not required
to measure the defendant's credibility in order to find him guilty of murder
under the judge's felony‑murder instruction, since the jury found the
defendant guilty of larceny of a motor vehicle and kidnapping, and since the
jury concluded that the defendant caused the victim's death, it is more likely
that the conviction[388 Mass. 512]
was based on the erroneous felony‑murder instruction than on the
correct malice instruction. Because
there is a substantial risk that the jury's verdict was based on the erroneous
felony‑murder instruction, the defendant's conviction of murder in the second
degree should be reversed.
(FN1.) Detective Joseph Brugliera of the
Norton police department excised the words "North Attleborough" which
appear on the form and wrote in their place the word "Norton." We reject the defendant's contention that
this change, which did not affect the content of the form, demonstrates that
the police coerced the defendant into relinquishing his rights.
(FN2.)
The judge suppressed the final statement which the defendant made at
approximately 3 A.M., after he asserted his right to counsel.
(FN3.)
In Commonwealth v. Day, 387 Mass.
915, 921, 444 N.E.2d 384 (1983), we held that the Commonwealth must prove a
knowing and intelligent waiver of Miranda
rights beyond a reasonable doubt. That standard is not applicable here since
it is to be applied only to decisions made on motions to suppress after the
date of the Day opinion. Id.
at 921 n. 10, 444 N.E.2d 384.
FN4.
In Commonwealth v. Moran, 387 Mass.
644, 442 N.E.2d 399 (1982), as in this case, the defendant had not objected to
the felony‑murder charge on
Matchett grounds. He objected to
this portion of the charge on constitutional grounds‑‑an issue
which we laid to rest in Moran, supra
at 650, 442 N.E.2d 399‑‑but raised no other objection.
(FN5.)
Although the defendant's rights were not saved below, we review this issue
under G.L. c. 278, § 33E, as appearing in St.1979, c. 346, § 2, to determine
whether relief should be afforded for any "reason that justice may
require."
(FN6.)
At trial he testified that he thought she was dead at this time.