COMMONWEALTH vs. DAVID J. BRADY.
Supreme Judicial Court of Massachusetts
March 5, 1980
Middlesex. November 6, 1979. — March 5, 1980.
380 Mass. 44
HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, & ABRAMS, JJ.
At a criminal trial, evidence of the defendant‘s intoxication did not have the effect of raising an issue of the involuntariness of the defendant‘s statements sufficient to trigger the requirement that the judge conduct a voir dire hearing sua sponte on the issue of voluntariness. [48-52]
At a criminal trial, the judge was not required to make specific findings on the voluntariness of the defendant‘s statements where the evidence was not conflicting and raised no question of custodial coercion. [52]
At a hearing on a motion for a new trial, there was sufficient evidence to warrant the judge‘s finding as to the voluntariness of the defendant‘s statements. [52-53]
At a criminal trial, the judge did not err in failing to submit the question of the voluntariness of the defendant‘s confessions to the jury where the issue was not sufficiently raised by the evidence. [53-55] ABRAMS, J., concurring.
There was no merit to the defendant‘s contention that he was denied effective assistance of counsel. [55-57]
INDICTMENT found and returned in the Superior Court on July 9, 1969.
The case was tried before Spring, J., and a motion for a new trial was heard by Tamburello, J.
J. Russell Hodgdon for the defendant.
Robert M. Raciti, Assistant District Attorney, for the Commonwealth.
HENNESSEY, C.J. The defendant, David J. Brady, was convicted of murder in the first degree in connection with the death of a three year old child and was sentenced to life imprisonment. The defendant‘s pro se petition for writ of
We conclude that the evidence elicited at trial on the questions of the defendant‘s intoxication and “head injury” was not sufficient to require the trial judge to inquire sua sponte as to the voluntariness of the defendant‘s inculpatory statements; that the judge‘s admission of the defendant‘s confessions after nonconflicting voir dire testimony constituted a clear determination of their voluntariness; that even if we assumed the voir dire examinations were deficient in the evidence taken or the rulings made, the determination at the posttrial hearing that the defendant‘s statements were voluntarily given cured any purported defects; that
We briefly summarize the events leading to the defendant‘s arrest. We then turn to the testimony elicited at trial with regard to the issue of voluntariness. Additional facts may be found in the context of our discussion of the various arguments raised by the defendant.1
During the evening of June 29, 1969, the defendant telephoned several people, including his father, his former wife, and a priest, and he related seemingly conflicting stories. He reported to these persons both that he had killed “somebody” and that he had found “a body” in his room. The defendant‘s father notified Stoneham police, who then found the body of a three year old girl on a closet shelf in a boarding-house room rented to the defendant. The victim had died of asphyxiation in the late morning of June 29. She had been sexually assaulted. The defendant was arrested in the early morning of June 30 while in the company of two priests.
At the trial the defendant‘s ex-wife, his father, and four police officers were allowed to testify as to declarations made to them by the defendant during the evening and ear-
When the defendant‘s former wife, his father, and the two other police officers were asked to relate the defendant‘s statements, defense counsel neither requested voir dire nor objected to the admission of the statements. The defendant‘s attorney did question the defendant‘s father as to his son‘s drinking habits and interrogated the other witnesses on the level of the defendant‘s sobriety at the time of his statements to them. The defendant‘s former wife stated that she “presume[d]” the defendant was drunk when he telephoned her to say that he had murdered someone because “[t]o say something like that, he had to be out of his head.” The witness observed further that the defendant was
The defendant‘s testimony set forth details establishing an alibi and bolstering the theory that someone else had used his room and killed the child there. His account itemized his considerable consumption of alcohol and drugs over a period from early morning on Saturday, June 28, to midnight on Sunday, June 29, a period of approximately forty hours.
1. Voluntary nature of the confessions. It is well established that due process is violated when a conviction is based, in whole or in part, upon an involuntary confession. E.g., Jackson v. Denno, 378 U.S. 368, 376 (1964). The United States Supreme Court has required a hearing out of the jury‘s presence to determine the issue of voluntariness whenever a defendant raises that issue. Id. at 391-394. Not only must a trial judge conclude that a confession was freely and voluntarily given before he allows the jury to hear it, but his “conclusion that the confession is voluntary must appear from the record with unmistakable clarity.” Sims v. Georgia, 385 U.S. 538, 544 (1967). However, if the defendant fails to raise the voluntariness question, the hearing prescribed by Jackson v. Denno, supra, is not constitutionally mandated. Wainwright v. Sykes, 433 U.S. 72, 86 (1977). A sua sponte obligation on the part of a trial judge has been
This court has recognized that intoxication may render a confession involuntary. Commonwealth v. Wampler, 369 Mass. 121, 124 (1975). Commonwealth v. Hosey, 368 Mass. 571, 577-579 (1975). However, we have never held that mere evidence of drinking alcohol or using drugs triggers a trial judge‘s obligation to inquire into the voluntariness of an admission or confession absent a defendant‘s objection. See Commonwealth v. Doyle, 377 Mass. 132, 136-138 (1979); Commonwealth v. Hooks, 375 Mass. 284, 287-290 (1978); Commonwealth v. Fielding, 371 Mass. 97, 109-113 (1976); Commonwealth v. Sires, 370 Mass. 541, 543-545 (1976). Cf. Commonwealth v. Podlaski, 377 Mass. 339, 342-343 (1979). Nor should that obligation arise from mere evidence of an accused‘s sustaining a cut in a barroom scuffle. Cf. Lego v. Twomey, 404 U.S. 477, 480 (1972). Furthermore, the sua sponte requirement of Harris, supra, was not intended to force continued inquiry into voluntariness once defense counsel has concluded, as defense counsel indicated here by his testimony at the hearing on the motion for new trial, that voluntariness is no longer a live issue. See Commonwealth v. Podlaski, supra at 343 n.4.
The judge conducted voir dire examinations of two of the four police witnesses. There was no credible evidence contradicting the fact that, before he made his spontaneous statements to the police, the defendant had been informed of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966). The uncontroverted voir dire testimony of both policemen established that the defendant had been drinking but was not drunk. Thus, the judge had no reason to find that an issue of voluntariness had been raised by the voir dire examinations of the two policemen. Nor did the judge have an “occasion to focus on, or to make findings concerning, the issue of voluntariness” during or after the testimony of the defendant‘s father and former wife.2 Commonwealth v. Podlaski, supra at 343 n.4. The only material evidence concerning the defendant‘s intoxication at the time of his telephone statements to these witnesses was derived from their telephone contact with the defendant. The evidence that the ex-wife “presume[d]” the defendant was drunk because “he had to be out of his head” to say that he had murdered someone and that his father thought that the defendant seemed to be “under the influence of liquor or something” was not the “affirmative,” “credible” evidence of involuntariness which triggers a Harris voir dire. Commonwealth v. Harris, 371 Mass. 462, 471 n.3 & 472 (1976). The posture of the evidence with regard to intoxication was essentially the same when the final two police officers testified.
The defendant, however, appears to argue that, following his testimony, the issue of intoxication became so substantial that the trial judge was obliged under Harris to reopen the question of voluntariness and conduct a full evidentiary hearing sua sponte. We disagree. In Harris, a genuine issue of voluntariness was first raised by the defendant‘s testimony that he was beaten by police until he confessed. 371 Mass. at 466-467. There having been no pre-
With regard to the defendant‘s “head injury,” we note that the record is devoid of any evidence that the defendant suffered any ill effects from the injury or that it in any way impaired his mental functioning. Contrast Pea v. United States, 397 F.2d 627 (D.C. Cir. 1967) (confession given while defendant suffering from concussion with bullet lodged in his head held involuntary). Further, since the laceration was apparently sustained after the defendant‘s telephone conversations with his former wife and father, it would be material only with respect to the defendant‘s subsequent statements to the police. The voir dire testimony, however, offered no occasion to the trial judge, in his exam-
The defendant next contends that the trial judge failed to make or file specific findings on voluntariness following the voir dires of the two police officers and that consequently his rulings on the issue do not meet the requisite standard of “unmistakable clarity.” See Sims v. Georgia, 385 U.S. 538, 544 (1967). Although we have stated that “it is both ‘prudent’ and ‘desirable’ for a judge to make a record of facts found in a voir dire hearing on the admissibility of evidence,” we have not held that “unmistakable clarity” mandates “an absolute requirement that such a record be made.” Commonwealth v. Forrester, 365 Mass. 37, 45 (1974). Failure to make explicit findings “does not in and of itself constitute reversible error.” Id. See Sims v. Georgia, supra at 544; Jackson v. Denno, 378 U.S. 368, 378-379 & n.8 (1964). Where, as in the present case, the evidence presented at the voir dire is not conflicting and does not raise any question of custodial coercion, the judge‘s decision to admit the defendant‘s statements makes his conclusions as to voluntariness “clearly evident from the record.” Jackson v. Denno, supra at 378-379. We emphasize, however, that we in no way condone the judge‘s failure to make findings.
2. Posttrial hearing on voluntariness. Even were we to assume that the voir dire examinations were constitutionally deficient with regard to the evidence taken or the rulings made, any remaining doubts concerning the admissibility of the defendant‘s statements were resolved at the hearing on the motion for new trial. See Jackson v. Denno, supra at 394, and Commonwealth v. Harris, 371 Mass. 462, 474 n.6 (1976) (posttrial hearing satisfies constitutional require-
3. Jury instructions regarding voluntariness. The defendant also argues that the charge to the jury was defective on the ground that the judge failed to submit the question of the voluntariness of the confessions to the jury, even though he had concluded from uncontroverted voir dire testimony
However, even were we to pass over the lack of objection or exception to the failure to submit the issue to the jury, the particular facts of this case do not warrant jury reconsideration. As we stated in Commonwealth v. Alicea, 376 Mass. 506, 523 (1978), “The overriding consideration is that there is no duty to ask the jury to pass on voluntariness unless it is made a live issue at trial.” We know from testimony at the hearing on the motion for a new trial that trial counsel deliberately abandoned the issue of voluntariness following the two voir dires. We have already concluded
4. Assistance of counsel. The defendant contends that certain omissions by trial counsel deprived him of effective assistance of counsel. He points to counsel‘s failure to call certain witnesses, who allegedly could bolster his claim of involuntariness and place in doubt the validity of his confessions, and to counsel‘s failure to request voir dires, rulings of law, and jury instructions with regard to the voluntariness of his confessions. We cannot conclude that counsel‘s omissions demonstrated “serious incompetency, inefficiency, or inattention of counsel” or that his representation fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant‘s attack on the validity of his confessions to police lacks factual support. The affidavit of one of the priests present at the time of the defendant‘s arrest merely states that the affiant was so upset at the time of arrest that he could not remember whether Miranda warnings were
Nor would these witnesses’ testimony have significantly bolstered the involuntariness claim. The attorney called to the police station was unwilling to categorize the defendant as “drunk.” The second priest, whose testimony may have been helpful, was privy to an additional statement by the defendant, in which the defendant asked the priest, “How would you feel if you had killed a little girl?” The defendant cannot argue with the advantage of hindsight that trial counsel was ineffective because he failed to risk the introduction of this potentially damaging precustody statement in exchange for the priest‘s testimony concerning intoxication. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979); Commonwealth v. Williams, 378 Mass. 217, 239 (1979); Commonwealth v. Adams, 374 Mass. 722, 728-729 (1978).
The defendant‘s challenge of his attorney‘s other tactical decisions to abandon the issue of voluntariness and to request no additional voir dire testimony or jury instructions on that theory must likewise fail. Effective assistance is not measured by trial counsel‘s willingness to indulge every available procedure no matter how futile. See Commonwealth v. LeBlanc, 364 Mass. 1, 11-12 (1973). In deciding not to pursue the voluntariness issue, trial counsel could have considered the absence of any evidence of physical coercion. In addition, he could have considered the substantial testimony that the defendant was not drunk at the time he made his statements to the police and the objective indicia of the defendant‘s sobriety, supra note 3, and could have concluded that he should not press the argument that the defendant was drunk. He also could have concluded that arguing to the jury, immediately after the defendant‘s particularized recall of his activities, that the confessions were involuntary because of the defendant‘s intoxication
5.
Judgment affirmed.
ABRAMS, J. (concurring). I agree with the opinion as a whole, but concur especially to express my view on whether the voluntariness of the confession should have been submitted to the jury. The evidence indicated that the defendant had been drinking heavily “prior to, during, and after the commission of the [crime].” Commonwealth v. Chung, 378 Mass. 451, 457 (1979). In my view, that evidence was sufficient to raise the issue of the voluntariness of the statements and require the judge to submit the issue of the voluntariness of the defendant‘s confessions to the jury in accordance with our “humane practice.” See Commonwealth v. Johnston, 373 Mass. 21, 24 (1977); Commonwealth v. Harris, 371 Mass. 462, 469-470 (1976); Commonwealth v. Cole, ante 30 (1980).
The defendant, however, chose to challenge the truthfulness of his inculpatory statements apart from arguing that their involuntariness might affect their trustworthiness and reliability. Cf. Jackson v. Denno, 378 U.S. 368, 385-386 (1964). In his closing argument, defense counsel specifically referred to the testimony of the defendant‘s father that his son lied so often it was difficult to tell the lies from the truth. At trial, the defendant testified that he made statements which were untrue because he was sick of the “kind
Finally, defense counsel failed to raise the issue of voluntariness after the voir dires and he did not request appropriate jury instructions. At the hearing on the motion for a new trial he stated that he had abandoned the issue of voluntariness. The record confirms that at trial the defendant‘s inculpatory statements were attacked by counsel as untrue and that his approach was a strategic choice rather than inadvertent oversight or ineptitude.
A trial strategy which is not successful does not necessarily indicate error or ineffective assistance of counsel. “There are certain risks inherent in most strategic decisions and tactical moves, and the strategist or tactician on neither side is in a very good position to claim foul if his own strategy backfires or he is outmaneuvered. It is not a function of this court to protect a litigant from the inherent consequences of a risk which he voluntarily assumes.” Commonwealth v. DiPietro, 373 Mass. 369, 391 (1977). I, therefore, concur in the conclusion that in these circumstances the judge was not obliged to submit the issue of the voluntariness of the defendant‘s statements to the jury.