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Opinions of The and the Court of Appeals To be used in
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Commonwealth v. Tavares, 385
Supreme Judicial Court of Massachusetts,
Argued
Decided
Willie J. Davis,
Lance J. Garth, Asst. Dist. Atty., for the
Commonwealth.
Before [385
ABRAMS, Justice.
After a
jury trial, the defendant David Tavares was convicted of murder in the first
degree. ([FN1]) He was sentenced to the mandatory term of
life imprisonment. ([FN2]) Tavares appeals. He claims error concerning (1) the denial of
his motion to suppress statements made by him to police officials; (2) the
instructions to the jury; (3) the denial of a motion for mistrial based on
juror misconduct; ([FN3]) and (4) a
variance between the Commonwealth's proof and its bill of particulars. Tavares also requests that we exercise our
power under G.L. c. 278, s 33E, and reduce the verdict [385
We
summarize the facts. On the evening of
May 24, 1979, the defendant, age seventeen, was drinking in the third base
dugout of Dias Field in New Bedford. He
was accompanied by a friend Bruce Bookman, age seventeen, and a cousin Keith
Tavares (Keith), age twenty. While in
the dugout, the three collectively consumed twelve twelve‑ounce cans of
beer and a fifth of vodka. They decided
to obtain more beer, but were fifty cents short of the purchase price. One of them approached the victim, Jesse
Aranjo, as he was passing by the dugout, and asked him for fifty cents. The victim was not known to any of the three
men in the dugout.
The victim
responded by insulting them. He
threatened to return with members of his motorcycle gang to beat them up. A fight ensued between the three men and the
victim. The victim was subdued, and the
defendant, aided by Keith and Bookman, removed the victim's clothing and took
him into the dugout where they left him.
The defendant, Keith, and Bookman then left the ballpark, the defendant
taking the victim's jacket, which he later discarded, and one dollar, which he
later lost. The defendant returned to
the ballpark shortly thereafter to retrieve a comb he had lost during the fight
and saw the victim in the dugout, trying to get up.
1. The
motion to suppress. The body of Jesse
Aranjo was discovered at approximately 12:30 P.M. on May 25, 1979. At approximately 2 A.M. on May 26th, the
defendant and a female companion went to the police station and asked the
officer in charge if the police were looking for him. The officer replied that his records did not
indicate that the police were looking for a David Tavares. The officer recommended that Tavares call
back later in the day.
[385 Mass. 143] At about 10:30 A.M., the police went to Tavares's house and asked
him if he would voluntarily come to the station to speak with them. Tavares agreed to go to the station. At that time, Tavares knew of Aranjo's
death. He also knew that the police
wanted to speak to him about Aranjo. At
the station, Tavares made some incriminating statements. ([FN4])
Prior to
trial, the defendant moved to suppress those statements. The defendant claims that as a result of his
youth and inexperience, he made these statements without a knowing and
intelligent waiver of his Miranda rights as required by the Fifth and Sixth
Amendments to the Constitution of the United States. At the hearing on his motion, the defendant
did not deny that he made the statements, nor did he claim that the police used
force, intimidation, or trickery to obtain the statements. He also did not allege that the police denied
him food, drink, or sleep or that the police used physical brutality. Further, he did not claim that the police
failed to advise him of his constitutional rights. The basis for Tavares's motion was that the
statements were coerced because of his lack of experience and his youthful fear
of authority.
After the
suppression hearing, the judge made the following findings of fact. At the police station, the defendant was
repeatedly advised of the Miranda rights.
The defendant indicated to police that he understood these warnings. Before making any statements, the defendant
signed a card acknowledging that he understood his rights. Moreover, the judge found that, since the
defendant had been arrested on prior occasions, he was familiar with these
procedures.
From
listening to a tape recording of the interrogation, the judge found no evidence
of any threats, inducements, or [385
Mass. 144] promises of reward. The tapes indicated that the defendant was
coherent and appeared to understand what was said during the interrogations. The judge concluded that Tavares knowingly
and voluntarily waived his constitutional rights. The judge also concluded that after the
waiver the defendant intelligently and voluntarily answered the questions put
to him by the police.
The
defendant challenges the judge's findings as erroneous. He claims that his youth and inexperience
vitiated his waiver, ([FN5]) and that his statements were not voluntary. To support his argument, the defendant cites
several studies that have suggested that youths are particularly susceptible to
the inherent coerciveness of interrogations.
([FN6]) See Gage, Protecting the
Juvenile Witness, 17 J. of Family L. 439, 451 (1978); Note, Interrogations in
New Haven, The Impact of Miranda, 76 Yale L.J. 1519, 1577 (1967). Relying on these studies, the defendant
claims that because of his special sensitivity to police pressure in his first statement to
the police, he took more than his share of responsibility for the fight with
Aranjo. ([FN7])
"In
reviewing a trial judge's determination that a voluntary waiver was made, the
judge's subsidiary findings will [385
Mass. 145] not be disturbed, if they
are warranted by the evidence, and his resolution of conflicting testimony will
be accepted." Commonwealth v.
Santo, 375 Mass. 299, 303, 376 N.E.2d 866 (1978). See Commonwealth v. Tabor, 376 Mass. 811,
822, 384 N.E.2d 190 (1978); Commonwealth v. Murphy, 362 Mass. 542, 550, 289
N.E.2d 571 (1972) (Hennessey, J., concurring).
Although the judge's ultimate findings are open for review, "a
finding of voluntary waiver is 'entitled to substantial deference by this
court.' 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)." Commonwealth v.
Tabor, supra. However, "(o)ur
appellate function requires that we make our own independent determination on
the correctness of the judge's 'application of constitutional principles to the
facts as found ....' Brewer v. Williams,
430 U.S. 387, 403 (97 S.Ct. 1232, 1242, 51 L.Ed.2d 424) (1977)." Commonwealth v. Haas, 373 Mass. 545, 550, 369
N.E.2d 692 (1977). See Commonwealth v.
Wilborne, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
Mass.Adv.Sh. (1981) 59, 69, 415 N.E.2d
192.
(1) A
judge's finding that the defendant knowingly and voluntarily waived his Miranda
rights is not the only prerequisite to admissibility. A judicial determination of voluntariness is
also constitutionally required. Jackson
v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). "In determining admissibility in the first
instance the judge is undoubtedly bound by the dictates of Miranda, i.e., if
its prerequisites have not been fully met, the confession is without more
involuntary as a matter of law, hence inadmissible and insubmissible. But an incriminating statement may also be
inadmissible and insubmissible because not factually shown to have been freely
and voluntarily given, even though the requirements of Miranda have been fully
met." Coyote v. United States, 380
F.2d 305, 309‑310 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489,
19 L.Ed.2d 484 (1967). See Eisen v.
Picard, 452 F.2d 860, 863‑865 (1st Cir. 1971).
At the
suppression hearing, the defendant offered no evidence that he was particularly
susceptible to police pressure. There
was no evidence that he had been drinking in the hours immediately before he
spoke to the police. Nor was there any
evidence of mental impairment or the use of drugs. See Commonwealth v. Wilborne, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1981) 59, 70‑71, 415
N.E.2d 192. Compare Commonwealth v.
Hosey, 368 [385 Mass. 146] Mass. 571, 334 N.E.2d 44 (1975);
Commonwealth v. Daniels, 366 Mass. 601, 321 N.E.2d 822 (1975). Indeed, the record indicates that he had
completed the tenth grade, had been accepted into the armed forces of the
United States, and was married and the father of a child.
The record
offers no explanation why the defendant first said that he alone kicked the
victim. However, there may be
explanations for the defendant's conduct other than the susceptibility of
youth. For example, the defendant may
have been acting under a code of silence, with a foolish sense of braggadocio
or from family loyalty to his cousin Keith.
In any event, we are not free to speculate on matters outside the
record. Cf. Commonwealth v. Ferguson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1981) 1551, 1555‑1557,
422 N.E.2d 1365.
(2)(3)
"A minor may waive constitutional rights and make a confession which is
admissible against him."
Commonwealth v. Daniels, 366 Mass. 601, 605, 321 N.E.2d 822 (1975), and
cases cited. Compare Commonwealth v.
Davis, 380 Mass. 1, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1980) 555, 558‑560, 401 N.E.2d 811; Commonwealth v. Daniels,
supra, 366 Mass. at 606‑608, 321 N.E.2d 822, with Commonwealth v. Meehan,
377 Mass. 552, 567‑568, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S.
39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980).
Whether the facts support the admission of statements made by a minor
"must be determined by an examination of 'the totality of all the
surrounding circumstances‑both the characteristics of the accused and the
details of the interrogation.'
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (93 S.Ct. 2041, 2047, 36
L.Ed.2d 854) (1973)." Commonwealth
v. Daniels, 366 Mass. 601, 606, 321 N.E.2d 822 (1975). In light of the totality of the
circumstances, we believe that the judge correctly concluded that the defendant
knowingly and voluntarily waived his rights under Miranda and made the
statements voluntarily.
2. Jury
instructions. The defendant claims three
errors in the instructions to the jury: (1) the judge erred in using the term
"moral certainty" in defining reasonable doubt; (2) the judge
impermissibly shifted the burden of proof from the Commonwealth by using
language from Commonwealth v. Madeiros, 255 Mass. 304, 307, 151 N.E. 297
(1926); and (3) the instructions on admissions were prejudicially
erroneous. We disagree.
[385 Mass. 147] (4) a. Moral certainty.
The defendant claims error in the failure to the judge to grant one of
his requests for instructions to the jury.
Relying on United States v. Indorato, 628 F.2d 711, 720 (1st Cir.),
cert. denied, 449 U.S. 1016, 101 S.Ct.
578, 66 L.Ed.2d 476 (1980), the defendant argues that the judge erred when he
equated the requirement of proof beyond a reasonable doubt with proof to a
moral certainty. ([FN8]) The defendant's argument is most
unpersuasive, because the defendant requested instructions containing the words
"moral certainty."
([FN9]) Further, instructions
containing the words "moral certainty" have not resulted in
reversals. See United States v. Previte,
648 F.2d 73, 83 (1st Cir. 1981); United States v. Indorato, supra at 721;
United States v. Magnano, 543 F.2d 431, 436‑437 (2d Cir. 1976). Moreover, we believe it is sound policy to
adhere to the definition of reasonable doubt set forth in Commonwealth v.
Webster, 5 Cush. 295, 320 (1850), a definition that includes the words
"moral certainty." See
Commonwealth v. Williams, 378 Mass. 217, 235, 391 N.E.2d 1202 (1979);
Commonwealth v. Ferreira, 373 Mass. 116, 130 n.12, 364 N.E.2d 1264 (1977).
(5) b.
Madeiros charge. The defendant also
claims that the judge erred when he instructed the jury with language from the
instructions quoted in Commonwealth v. Madeiros, 255 Mass. 304, 307, 151 N.E.
297 (1926). ([FN10]) Trial counsel ([FN11]) did not specifically [385 Mass. 148] object to this portion of the charge. Although the absence of any objection is
relevant, see Commonwealth v. Fluker, 377 Mass. 123, 131, 385 N.E.2d 256
(1979), we are obliged to review the instructions pursuant to s 33E to
determine whether there is a "substantial likelihood that a miscarriage of
justice has occurred. Commonwealth v.
Roberts, 378 Mass. 116, 123 (389 N.E.2d 989) (1979). Commonwealth v. Burnett, 371 Mass. 13, 16 (353
N.E.2d 665) (1976)." Commonwealth
v. Garcia, 379 Mass. 422, ‑‑‑, Mass.Adv.Sh. (1980) 21, 38, 399 N.E.2d 460. ([FN12])
The
defendant argues that the Madeiros language impermissibly lessens the
government's burden of proof by creating in the minds of the jurors the
possibility that guilt may be established by a general concern for public
safety. Whatever the merits of that
argument in general, it is not convincing in this case. On at least five occasions, the judge
instructed the jury that the Commonwealth had the burden of proving beyond a
reasonable doubt every essential element of the crimes. ([FN13])
The judge also defined reasonable doubt in the language of Commonwealth
v. Webster, 5 Cush. 295, 320 (1850). We,
therefore, conclude that the defendant has not established that the Madeiros
language created a substantial likelihood of a miscarriage of justice.
Nevertheless,
we believe that "(t)he emotional overtones of (the Madeiros ) rhetoric may
be criticized as subtly encouraging a jury to accept less proof than it should,
so that 'the lawless' will not be 'supreme,' " Bumpus v. Gunter, 635 F.2d
907, 911 (1st Cir. 1980), cert. denied, 450 U.S. 1003, 101 S.Ct. 1714, 68
L.Ed.2d 207 (1981), and we repeat that "(e)xplanations of reasonable doubt
are best made in close reliance on the time‑tested language[385 Mass. 149] of Commonwealth v.
Webster, 5 Cush. 295, 320 (1850)."
Commonwealth v. Wood, ‑‑‑ Mass. ‑‑‑,
‑‑‑, Mass.Adv.Sh.
(1980) 1123, 1129, 404 N.E.2d 1223, and cases cited.
c.
Presumption of voluntariness. The
defendant asserts that the judge erred when he instructed the jury that there
is a presumption that a confession is voluntary. ([FN14])
He claims that the judge's failure to instruct the jury that the
Commonwealth has the burden of proving that a confession is voluntary is
reversible error. Since the defendant
did not object to the instructions on voluntariness, we review this claim to
determine whether there is a "substantial likelihood that a miscarriage of
justice has occurred." Commonwealth
v. Garcia, 379 Mass. 422, ‑‑‑, Mass.Adv.Sh. (1980) 21, 38, 399 N.E.2d 460. We would only reverse on a showing of grave
prejudice. Commonwealth v. Burnett, 371
Mass. 13, 16, 353 N.E.2d 665 (1976). See
Commonwealth v. Coleman, 366 Mass. 705, 711, 322 N.E.2d 407 (1975).
(6) Our
"humane practice" requires that "when statements amounting to a
confession are offered in evidence, the question whether they were voluntary is
to be decided at a preliminary hearing in the absence of the jury. If he (the judge) is satisfied that they are
voluntary, they are admissible; otherwise, they should be excluded. If the judge decides [385 Mass. 150] that
they are admissible, he should then instruct the jury not to consider the
confession if, upon the whole evidence in the case, they are satisfied that it
was not the voluntary act of the defendant." ([FN15])
Commonwealth v. Marshall, 338 Mass. 460, 461‑462, 155 N.E.2d 798
(1959), and cases cited. See
Commonwealth v. Chung, 378 Mass. 451, 456, 392 N.E.2d 1015 (1979).
In the
past, we have applied this "humane practice" only to confessions and
not to admissions. ([FN16]) See Commonwealth v. Gleason, 262 Mass. 185,
189‑190, 159 N.E. 518 (1928); Commonwealth v. Jokinen, 257 Mass. 429,
430, 154 N.E. 189 (1926); Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E.
571 (1923). However, "(w)e have in
recent years questioned whether the same safeguards might not be required for
inculpatory statements which fall short of a confession." Commonwealth v. Vick, ‑‑‑ Mass.
‑‑‑, ‑‑‑, Mass.Adv.Sh. (1980) 1577, 1579, 406 N.E.2d 1295. Commonwealth v. Garcia, 379 Mass. 422, ‑‑‑,
Mass.Adv.Sh. (1980) 21, 30, 399 N.E.2d
460. Commonwealth v. Fournier, 372 Mass.
346, 348, 361 N.E.2d 1294 (1977). See
P.J. Liacos, Massachusetts Evidence 322 (5th ed. 1981). We see no reason to distinguish between
admissions and confessions and conclude that the "humane practice"
applies to all incriminating statements made by the accused.
(7)
Extending our "humane practice" to admissions, we determine that the
defendant has not shown a substantial likelihood of a miscarriage of
justice. A judge has "no duty to
ask the jury to pass on voluntariness unless it is made a live issue at
trial." Commonwealth v. Alicea, 376
Mass. 506, [385 Mass. 151] 523, 381 N.E.2d 144 (1978). Compare Commonwealth v. Cole, 380 Mass. 30, ‑‑‑,
Mass.Adv.Sh. (1980) 583, 593, 402 N.E.2d
55, with Commonwealth v. Brady, 380 Mass. 44, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1980) 597, 606‑608,
410 N.E.2d 695. See Commonwealth v. Pratt,
360 Mass. 708, 714‑715, 277 N.E.2d 517 (1972); Commonwealth v. Preece,
140 Mass. 276, 277, 5 N.E. 494 (1885).
At trial, the defendant failed to raise the issue of voluntariness, and
the defendant requested no instructions on this issue. At no time did the defendant's testimony
focus on the involuntariness of his statements.
Rather, the defendant claimed that others had had the motive and
opportunity to kill the victim. His testimony
was substantially the same as the statement that he made to the police in the
third interview. See note 7 supra. "(I)n these circumstances the judge was
not obliged to submit the issue of voluntariness of the defendant's statements
to the jury." Commonwealth v.
Brady, 380 Mass. 44, ‑‑‑, Mass.Adv.Sh. (1980) 597, 612, 410 N.E.2d 695 (Abrams, J.,
concurring).
(8) Since
the judge instructed the jury that there is a presumption that a confession is
voluntary, we think it prudent to elaborate further our "humane
practice." The presumption that a
confession is voluntary merely places on the defendant the burden of going
forward at the suppression hearing with evidence of involuntariness, see
Commonwealth v. Harris, 371 Mass. 462, 471 n.3, 358 N.E.2d 982 (1976), and does
not apply at trial. Moreover, even at
the suppression hearing, this presumption disappears once the defendant has
produced some evidence that the statement was involuntary.
(9) Due process requires the Commonwealth to
persuade the judge at the suppression hearing that the statement was voluntary
before it is admitted in evidence at trial.
See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908
(1964); Commonwealth v. Harris, supra.
"(A) trial judge has a constitutional obligation to conduct a voir
dire examination in the absence of the jury where the voluntariness of a
confession is in issue and to make an affirmative finding of voluntariness
before the jury are allowed to consider it." Id. 371 Mass. at 469, 358 N.E.2d 982. This judicial determination of voluntariness
is necessary because of the "prejudice inhering in the admixture of a
determination of voluntariness together with the jury's inescapable
consideration of reliability[385
Mass. 152] of the confession, and indeed ultimate guilt
or innocence." Clifton v. United
States, 371 F.2d 354, 362 (D.C.Cir.1966), cert. denied, 386 U.S. 995, 87 S.Ct.
1312, 18 L.Ed.2d 341 (1967) (Leventhal, J., concurring). See Pea v. United States, 397 F.2d 627
(D.C.Cir.1967).
(10) Under
our "humane practice" the initial screening by the judge is the
"basic determination safeguarding the accused." Clifton v. United States, supra (Leventhal,
J., concurring). Thus we conclude that
before any statement by a defendant to law enforcement officers or their agents
may be placed before the jury, the Commonwealth must prove voluntariness beyond
a reasonable doubt. ([FN17]) If the judge concludes that the defendant's
statements are voluntary beyond a reasonable doubt, that conclusion "must
appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct.
639, 643, 17 L.Ed.2d 593 (1967).
Commonwealth v. Harris, 371 Mass. 462, 472 n.4, 358 N.E.2d 982
(1976). Eisen v. Picard, 452 F.2d 860,
863 (1st Cir. 1971).
(11)
Finally, a defendant's statement is usually "the key item in the proof of
guilt, and certainly one of overpowering weight with the jury." Clifton v. United States, 371 F.2d 354, 362
(D.C.Cir.1966) (Leventhal, J., concurring).
Therefore, if voluntariness is a live issue at trial, see Commonwealth
v. Alicea, 376 Mass. 506, 523, 381 N.E.2d 144 (1978), the judge must instruct
the jury that the Commonwealth has the burden of proving beyond a reasonable
doubt that the statement was voluntary and that the jurors must disregard the
statement unless the Commonwealth has met its burden. ([FN18])
[385 Mass. 153] See Bradley v.
Commonwealth, 439 S.W.2d 61, 64 (Ky.App.1969), cert. denied, 397 U.S. 974, 90
S.Ct. 1091, 25 L.Ed.2d 268 (1970).
([FN19])
(12) 3. Jury misconduct. After the instructions, four jurors were
designated alternate jurors, and the remaining twelve began their
deliberations. Approximately thirty
minutes after the deliberations had begun, one of the alternates asked to speak
to the judge. ([FN20]) The alternate alleged that a female juror had
told the others that the defendant had left school in the tenth grade because
he was habitually in trouble and was jailed or arrested. The alternate also alleged that another
female juror referred to blacks as "colored," and had called a black
witness "Sapphire," ([FN21]) a patently racist term.
[385 Mass. 154] In the presence of counsel, the judge interviewed each of the
deliberating jurors to determine if they heard the statement that the defendant
had to leave school because he was in trouble.
Not one of the deliberating jurors heard this remark. ([FN22])
The juror who was alleged to have made this comment denied that she made
the statement, and no other juror admitted making this statement. After completing this inquiry, the judge
found that the defendant had not met his burden of proving that the jury were
exposed to extraneous prejudicial information.
But even if this statement were made, the judge found that it had no
influence on the jury.
In the
course of his inquiry, the judge also asked each juror whether a defense
witness had been referred to as "Sapphire." Five jurors admitted hearing the term
"Sapphire." The judge found
that a defense witness had been called "Sapphire," but that this term
had been used in a jocular manner without any racial prejudice which would
affect the verdict. ([FN23])
The record
supports these findings. All five jurors
who heard the term "Sapphire," individually said that this term was
understood as a joke, and that it did not affect their ability to render an
impartial verdict. Further, the term
"Sapphire" was used immediately after the jury heard the testimony of
the witness who had been called "Sapphire," on the day before closing
arguments and the judge's instructions.
During deliberations, the jury requested additional instructions
regarding the difference between unarmed robbery and larceny from the
person. After receiving these
instructions, the jury found the defendant guilty of the lesser charge of
larceny from the person. Later, the
judge denied the defendant's motion for a new trial because he concluded that
the jurors had been concerned with legal principles and not racial prejudice.
[385 Mass. 155] The defendant argues that in spite of the results of the inquiry,
the fact that a racial slur had been used by a juror entitles him to a new
trial and nothing less will suffice. We
disagree. In Commonwealth v. Fidler, 377
Mass. 192, 200, 385 N.E.2d 513 (1979), we held that "if specific facts not
mentioned at trial concerning one of the parties or the matter in litigation
are brought to the attention of the deliberating jury by a juror, ... such
misconduct may be proved by juror testimony." Because a "right to use juror evidence
necessarily implies a method to gather that evidence," we said that judges
may supervise juror interviews to determine if extraneous prejudicial matters
had reached the jury. ([FN24]) Id. at 201, 385 N.E.2d 513. In authorizing these inquires, we gave the
judge broad discretion to make "such order as he deems appropriate for the
administration of justice." Id. at
203, 385 N.E.2d 513.
Our
decision in Fidler did "not permit evidence concerning the subjective
mental processes of jurors."
Commonwealth v. Fidler, 377 Mass. 192, 198, 385 N.E.2d 513 (1979). "(W)here the juror would testify solely
to matters resting in his own consciousness," the value of such testimony
is outweighed by the need to protect juror privacy. Id. In
drawing a distinction between "overt factors and matters resting in a
juror's consciousness," we recognized that "difficult cases"
would arise. Id. The defendant's claim of racial bias is one
of these cases. ([FN25])
[385 Mass. 156] The Commonwealth has not argued that evidence of racial prejudice
relates to the jurors' mental processes and thus is inadmissible under Fidler. Assuming, without deciding, that the judge
acted properly when he asked each deliberating juror whether he had heard any
racist comments, see State v. Levitt, 36 N.J. 266, 176 A.2d 465 (1961); People
v. Castaldia, 51 Cal.2d 569, 335 P.2d 104 (1959), we find no error. The judge interrogated the jurors and
concluded that they could fairly and impartially render a verdict. The judge was "in the best position to
judge the weight and credibility of the evidence." New England Canteen Serv., Inc. v. Ashley,
372 Mass. 671, 675, 363 N.E.2d 526 (1977).
"There is no reason to give a judge's finding of fact less weight
in (this) context than we ordinarily would, i.e., we accept his finding unless
clearly erroneous." Commonwealth v.
Ciminera, ‑‑‑Mass.App. ‑‑‑, ‑‑‑,
Mass.App.Ct.Adv.Sh. (1981) 1, 9, 414
N.E.2d 366, aff'd, ‑‑‑ Mass. ‑‑‑,
Mass.Adv.Sh. (1981) 2132, 427 N.E.2d
749. "(A) finding of fact by the
trial judge will not be deemed 'clearly erroneous' unless the reviewing court
on the entire evidence is left with the firm conviction that a mistake has been
committed." New England Canteen
Serv., Inc. v. Ashley, supra. Since a
review of the entire record has not left us with a firm conviction that a
mistake has been committed, the judge's denial of the defendant's motions is
affirmed. In [385 Mass. 157]
affirming the judge's rulings, we in no way condone or approve the use of
racial slurs.
(13) 4.
Variance between the bill of particulars and the proof offered at trial. The defendant claims that he was prejudiced
by the variance between the bill of particulars and the proof offered at
trial. Although he concedes that he knew
that he was on trial for murder, the degree to be determined by the jury, the
defendant says that the bill of particulars suggested that the Commonwealth
would attempt to prove murder in the first degree only on the basis of
deliberate premeditation and felony‑murder and not extreme atrocity or
cruelty. Thus, he claims that when the
Commonwealth introduced photographs of the victim to establish extreme atrocity
or cruelty, he was surprised and unable to present an adequate defense. The defendant made no objection on this
ground at trial, and this contention is not properly before us. We review this claim pursuant to G.L. c. 278,
s 33E.
In its
particulars, the Commonwealth stated that it would prove that the homicide was
committed by "assaulting and beating the victim with the intent to rob and
kill" by means of his "hands, feet, shoes and clothes." Prior to trial, the defendant was furnished
with copies of the autopsy report which indicated that the victim died from
multiple severe blunt injuries. Further,
the judge granted the defendant's motion to inspect the evidence in the
possession of the Commonwealth, and that evidence included the photographs of
the victim. Thus, the defendant was put
on notice that the Commonwealth might introduce evidence on the issue of
extreme atrocity or cruelty. See Commonwealth
v. Whitehead, 379 Mass. 640, ‑‑‑, Mass.Adv.Sh. (1980) 257, 263, 400 N.E.2d 821. We find no merit in the defendant's claim
that he was surprised by the proof offered by the Commonwealth at trial.
(14) 5.
Relief pursuant to G.L. c. 278, s 33E.
The court has the obligation pursuant to s 33E to consider broadly the
whole case on the law and the facts and "(u)pon such consideration the
court may, if satisfied that the verdict was against the law or the weight of
the evidence, ... or for any [385
Mass. 158] other reason that justice
may require (a) order a new trial or (b) direct the entry of a verdict of a
lesser degree of guilt." G.L. c.
278, s 33E, as amended through St. 1979, c. 346, s 2. "The search under s 33E is a ... general
and ... obligatory one for a result that may be 'consonant with justice.'
" Commonwealth v. Davis, 380 Mass.
1, ‑‑‑, Mass.Adv.Sh.
(1980) 555, 569 n.20, 401 N.E.2d 811, quoting Commonwealth v. Seit, 373
Mass. 83, 94, 364 N.E.2d 1243 (1977).
See Commonwealth v. Williams, 364 Mass. 145, 150, 301 N.E.2d 683
(1973). Our power, however, is to be used
with restraint. Commonwealth v.
MacDonald, 371 Mass. 600, 604, 358 N.E.2d 1005 (1976).
The only
basis for the defendant's conviction of murder in the first degree is extreme
atrocity or cruelty. ([FN26]) The defendant correctly does not claim that the
evidence of repeated blows to the victim's body could not sustain the verdict
of murder in the first degree.
Commonwealth v. Satterfield, 362 Mass. 78, 82, 284 N.E.2d 216 (1972)
(crime committed with such savagery and brutality as to constitute murder committed
with extreme atrocity or cruelty).
Commonwealth v. McGarty, 323 Mass. 435, 440, 82 N.E.2d 603 (1948)
("Repeated violent blows have been held to evince such ferocity as would
warrant a finding of extreme atrocity or cruelty"). Rather the defendant claims that the
Commonwealth's best evidence against him is more consistent with a lesser
degree of guilt than murder in the first degree. We agree.
Viewed in
the light most favorable to the Commonwealth, the evidence shows that a fight
erupted between the victim, the defendant, his cousin Keith, and Bookman. The fight was not a planned encounter, but
was a spontaneous reaction to alleged insults by the victim toward the
defendant, Keith, and Bookman.
Additionally, the Commonwealth's experts indicated that some of the more
savage blows were inflicted by the defendant's cousin Keith. See note 4 supra.
[385 Mass. 159] Keith was convicted of murder in the second degree by a different
jury. Although "mere inconsistency of
the verdicts‑i.e., that one jury found (this defendant) guilty of murder
in the first degree and another found (Keith) guilty of murder in the second
degree‑is not ordinarily enough to impel us to exercise our powers under
s 33E," Commonwealth v. Pisa, 372 Mass. 590, 597, 363 N.E.2d 245, cert.
denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977), we believe that in
this case, "the evidence of murder in the first degree as distinguished
from that of murder in the second degree is much less persuasive." ([FN27])
Id. 372 Mass. at 598, 363 N.E.2d 245.
See Commonwealth v. Vanderpool, 367 Mass. 743, 750‑751, 328 N.E.2d
833 (1975).
Further,
in deciding whether to "shade the verdict," we are entitled to give
weight to the defendant's character. See
Commonwealth v. Seit, 373 Mass. 83, 95, 364 N.E.2d 1243 (1977); Commonwealth v.
Vanderpool, 367 Mass. 743, 750, 328 N.E.2d 833 (1975). At the time of the killing, the defendant was
seventeen, married, and the father of a young child. He had completed the tenth grade, was about
to enter the armed forces, and had no prior convictions. In short, the defendant "was not a
hoodlum or gangster." Commonwealth
v. Seit, supra.
With all
these factors in mind, we order the verdict reduced to murder in the second
degree. The order denying the motion for
a new trial is affirmed. We remand this
case to the Superior Court where the verdict of guilty of murder in the first
degree, and the sentence previously imposed, are to be vacated. A verdict of guilty of murder in the second
degree is to be entered, and sentence is to be imposed thereon.
So
ordered.
(FN1.) The defendant was also convicted of
larceny from a person, but the indictment was placed on file with the
defendant's consent. Thus, there is no
issue before us as to the propriety of this conviction. "Absent exceptional circumstances, we do
not consider appeals on assignment of error on indictments placed on file (with
the defendant's consent) since no appeal may come before us until after judgment,
which in criminal cases is the sentence."
Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).
(FN2.)
Two other men, Keith Tavares, the defendant's cousin, and a friend, Bruce
Bookman, also were tried and convicted as a result of the victim's death. Since each man made statements to the police,
there were three separate trials. See
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968). Keith Tavares was convicted of
murder in the second degree; Bookman was convicted of manslaughter.
(FN3.)
Tavares also appeals from the denial of a motion for a new trial based on a
claim of juror misconduct. The appeal
from the denial of the motion for a new trial was consolidated with Tavares's
direct appeal.
(FN4.)
Essentially, Tavares admitted to the police that he fought with Aranjo on May
25, 1979. However, he denied killing
Aranjo. Tavares claimed that, when he,
Keith, and Bookman left Aranjo in the third base dugout, Aranjo was very much
alive and that others had the opportunity to kill Aranjo. Tavares denied kicking Aranjo in the head and
chest, where the blows were most savage.
The Commonwealth experts were able to identify tread marks, similar to
shoes worn by Keith, on the victim's body, while the defendant's shoes had no
blood on them.
(FN5.)
We need not address ourselves to whether the Commonwealth must establish that
the defendant waived his constitutional rights by a "preponderance of the
evidence," see Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30
L.Ed.2d 618 (1972), or by proof beyond a reasonable doubt, since the defendant
did not raise this issue at trial or on appeal.
In any event, the judge's conclusion that the waiver was a knowing and
voluntary one appears "from the record with unmistakable
clarity." Commonwealth v. Harris,
371 Mass. 462, 472 n.4, 358 N.E.2d 982 (1976), quoting Eisen v. Picard, 452
F.2d 860, 863 (1st Cir. 1971).
(FN6.)
It does not appear that the defendant brought these studies to the attention of
the trial judge.
(FN7.)
The police interviewed the defendant three times: the first interview was
between 10:56 A.M. and 11:41 A.M.; the second interview, between 11:41 A.M. and
12:05 P.M.; and the third, between 1:37 P.M. and 1:55 P.M. The second and third interviews were taped,
the first interview was not taped. In
his first two interviews, the defendant told the police that only he (and not
Keith or Bookman) had fought with Aranjo.
According to the record, after he talked with his family, the defendant
implicated Keith.
(FN8.)
The relevant portion of the charge reads: "A fact is proved beyond a
reasonable doubt when it is proved to a moral certainty as distinguished from
an absolute certainty or a mathematical certainty, when it is proved to a
degree of certainty that satisfies the judgments and consciences of the jury as
reasonable men and women and leaves in their mind a settled conclusion of
guilt."
(FN9.)
The defendant's requested instructions contain the following paragraph:
"Before you members of the jury can convict the defendant of any degree of
the crime charged, each of you must be satisfied of his guilt to a moral
certainty, and beyond a reasonable doubt.
If you are not, then the defendant must be acquitted."
(FN10.) The relevant portion of the charge
reads: "If an unreasonable doubt or a mere possibility of innocence were
sufficient to prevent a conviction, then practically every criminal would be
set free to commit offenses and to prey upon the community and such a rule
would be wholly impractical and would break down the forces of law and order and,
in fact, would make the lawless supreme."
See Commonwealth v. Madeiros, 255 Mass. 304, 307, 151 N.E. 297 (1926).
(FN11.) Appellate counsel was not trial
counsel.
(FN12.) The defendant did not suggest this
argument to the judge at the conclusion of the instructions. Since this case was tried after Sandstrom v.
Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), we "bring
greater expectations to the judge's charge and ... expect more of counsel as well
in raising an appropriate objection."
Commonwealth v. Chasson, ‑‑‑ Mass. ‑‑‑,
‑‑‑, Mass.Adv.Sh.
(1981) 724, 730, 423 N.E.2d 306.
(FN13.) The judge also charged on manslaughter
and self‑defense and told the jury that the burden was on the
Commonwealth to prove that the defendant did not act in self‑defense.
(FN14.) The judge instructed the jury:
"We heard evidence by way of a tape and by testimony of police witnesses
as to statements made by the accused whereby he made admissions as to certain
facts. Well, a confession is a direct
acknowledgement of guilt. What he stated
was not a confession. What he stated are
considered admissions. The difference
between a confession and an admission is that a confession is a direct
acknowledgement of guilt on the part of the accused, as contradistinguished
from an admission which is a statement by the accused, direct or implied, of
facts pertinent to the issue and tending, in connection with proof or other
facts, to prove his guilt, but of itself insufficient to authorize a
conviction. If you should consider any
of the facts admissions as to any particular case, you may consider those. If you should consider that they were a
confession‑I think I just suggested to you that they were not
confessions, but if you might have a different view, then you would have to
consider whether or not, if it was a confession of any particular offense, they
were voluntarily made. There is a
presumption that even a confession is voluntary and competent if there is no
evidence to the contrary. So admissions
are to be considered by the jury for whatever value they may have, as I just
pointed out to you."
(FN15.) "While this so‑called
'Massachusetts practice' was approved in Jackson v. Denno, 378 U.S. 368, 378
(84 S.Ct. 1774, 1781, 12 L.Ed.2d 908) (1964), the second prong of it‑jury
reconsideration‑is not constitutionally mandated. See Lego v. Twomey, 404 U.S. 477, 489‑490
(92 S.Ct. 619, 626‑627, 30 L.Ed.2d 618) (1972)." Commonwealth v. Cole, 380 Mass. 30, ‑‑‑,
Mass.Adv.Sh. (1980) 583, 593, 402 N.E.2d
55. Commonwealth v. Chung, 378 Mass.
451, 456, 392 N.E.2d 1015 (1979).
(FN16.) At common law, a confession was
distinguished from an admission. "A
confession consisted either of a direct acknowledgement of guilt of the precise
crime charged or of all facts necessary to establish guilt of that crime. An admission in a criminal case is a
statement by the accused, direct or implied, of facts pertinent to the issue
which although insufficient in itself to warrant a conviction tends in connection
with proof of other facts to establish the accused's guilt." P. J. Liacos, Massachusetts Evidence 296‑297
(5th ed. 1981).
(FN17.) Other jurisdictions also require the
prosecution to prove beyond a reasonable doubt that the defendant's statement
was voluntary before it is admitted in evidence. See State v. Ragsdale, 249 La. 420, 429, 187
So.2d 427 (1966), cert. denied, 385 U.S. 1029, 87 S.Ct. 758, 17 L.Ed.2d 676
(1967); Rhone v. State, 254 So.2d 750 (Miss.1971); People v. Huntley, 15 N.Y.2d
72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); State ex rel. Goodchild v. Burke,
27 Wis.2d 244, 133 N.W.2d 753 (1965), cert. denied, 384 U.S. 1017, 86 S.Ct.
1941, 16 L.Ed.2d 1039 (1966).
(FN18.)
The judge should "refrain from informing the jury as to his decision on
the issue of voluntariness .... Advising
the jury of the judge's finding of voluntariness seems to us to serve no
purpose. Indeed, it may tend to diminish
the benefit of independent jury determination required by our long‑established
'humane' rule." Harris v.
Commonwealth, 371 Mass. 478, 481 n.3, 358 N.E.2d 991 (1976). See Commonwealth v. Chung, 378 Mass. 451, 460
n.12, 392 N.E.2d 1015 (1979). To the
extent that some of our cases are to the contrary, we decline to follow
them. See, e.g., Commonwealth v. Bys,
370 Mass. 350, 364, 348 N.E.2d 431 (1976); Commonwealth v. White, 353 Mass.
409, 418, 232 N.E.2d 335 (1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2039, 20
L.Ed.2d 881 (1968).
(FN19.) Our decision today does not require
the judge to submit to the jury the question of the validity of a waiver of
Miranda rights apart from the overall determination of voluntariness. Compliance with Miranda is a prerequisite for
admissibility and is a question of law for the judge. See Coyote v. United States, 380 F.2d 305,
309‑310 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d
484 (1967); Betts v. Board of Educ. of Chicago, 466 F.2d 629 (7th Cir.
1972). A jury, however, may consider
whether the waiver was voluntary in its overall determination of
voluntariness. "(E)vidence bearing
on whether warnings were given and rights were validly waived is 'relevant in
determining whether a confession is voluntary.' " Commonwealth v. Chung, 378 Mass. 451, 458‑459
n.9, 392 N.E.2d 1015 (1979), quoting Commonwealth v. Valcourt, 333 Mass. 706,
711, 133 N.E.2d 217 (1956).
(FN20.) The alternate juror told the judge
that he did not report these incidents at the time they occurred since if he
were in the jury room during deliberations, he would know whether racial
prejudice affected the verdict. Because
he was not selected as a deliberating juror, he decided to speak to the judge.
(FN21.) Sapphire was an unpleasant black
character on the Amos 'n Andy Show, both on radio and on television. She "spent her life in one long shrewish
insistence that Kingfish (her husband) get an honest job." J. Harmon, The Great Radio Comedians 78
(1970). This "home life could
hardly have represented an idealization of Negro family life" (emphasis in
original). Id. at 84.
(FN22.) Two alternate jurors were the only
jurors who told the judge that they heard this statement.
(FN23.) After the inquiry, the defendant moved
for a mistrial, and the judge denied his motion.
(FN24.) In Commonwealth v. Fidler, 377 Mass.
192, 385 N.E.2d 513 (1979), we limited postverdict juror interviews. The questioning of jurors prior to the
verdict is no different from a postverdict inquiry and is governed by the same
principles, including judicial supervision.
(FN25.) Rule 606(b) of the Proposed
Massachusetts Rules of Evidence provides: "Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any matter
or statement occurring during the course of the jury's deliberations or to the
effect of anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict or indictment or
concerning his mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial information was
improperly brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror.
Nor may his affidavit or evidence of any statement by him concerning a
matter about which he would be precluded from testifying be received for these
purposes." "This is the
federal rule," and is in accord with the current Massachusetts rule
admitting evidence of extraneous information and excluding evidence of mental
processes. Advisory Committee's Notes,
Proposed Mass.R.Evid. 606(b). See
Fed.R.Evid. 606(b); Commonwealth v. Fidler, 377 Mass. 192, 385 N.E.2d 513
(1979). Federal courts have interpreted
the Federal rule to bar evidence of personal and racial prejudice. See United States v. Duzac, 622 F.2d 911, 913
(5th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980);
Smith v. Brewer, 444 F.Supp. 482 (S.D.Iowa), aff'd, 577 F.2d 466 (8th Cir.),
cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978). See also 3 J. Weinstein & M. Berger,
Evidence, par. 606(04) (1981).
Nevertheless,
there may be cases in which such evidence may not be excluded without "
'violating the plainest principles of justice.' ... Where, for example, an offer of proof showed
that there was a substantial likelihood that a criminal defendant was
prejudiced by the influence of racial bias in the jury room, to ignore the
evidence might well offend fundamental fairness." Smith v. Brewer, 444 F.Supp. 482, 490
(S.D.Iowa), quoting McDonald v. Pless, 238 U.S. 264, 268‑269, 35 S.Ct.
783, 784‑785, 59 L.Ed. 1300 (1915).
(FN26.)
The judge granted the defendant's motion for a required finding of not guilty
on so much of the indictment as charged deliberately premeditated malice
aforethought. The jury acquitted the
defendant of unarmed robbery and thus eliminated the possibility of felony‑murder.
(FN27.) The trial judge indicated some concern
over the verdict of murder in the first degree, but opined that only this court
could reduce the verdict to a lesser degree of guilt. But see Mass.R.Crim.P. 25(b)(2), 378 Mass. 896
(1979); Commonwealth v. Gaulden, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1981) 1123, 1132‑1137, 420 N.E.2d 905.