Convicted of murder in the first degree, the defendant appeals, alleging error in (1) the admission of his statements to the police; (2) the denial of his motion for a required finding; (3) the denial of his request for an instruction on voluntary manslaughter; and (4) the instructions on malice. The defendant asks that we exercise our power under G. L. c. 278, § 33E, and reduce the verdict to manslaughter. We conclude that there is no reversible error, and no substantial likelihood of a miscarriage of justice. Therefore we affirm the conviction. We decline to exercise our power under G. L. c. 278, § 33E, in favor of the defendant.
We summarize the evidence in the light most favorable to the Commonwealth. 1 At approximately 9:30 a.m. on February 10, 1985, the body of the victim was discovered in an outdoor stairwell at Lowell City Hall. The victim was a twenty-three year old married woman who had given birth to a baby nine days earlier. The victim was nude, lying up against a wall in a pool of blood. Her head, thighs, and stomach were covered with blood. There was a large gash in her forehead resulting from a forceful blow with a blunt instrument or caused “by crushing the victim’s head against the curbstone” with enough force and torque to split the skin to the bone and tear it away from the bone for about three inches. There was a blow to the back of the head and another on the right side of the head, which caused bruising and hemorrhaging in the brain. The extreme cold (nine or ten degrees Fahrenheit) in which the victim was left also may have contributed to her death. The victim had been struck forcefully across the back with a rodlike instrument and she sustained bruises and scratches consistent with having crawled about while still conscious. She had been dead for several hours.
At the station, the defendant met with an Inspector Guilfoyle. The defendant told Guilfoyle that he was with John Barnes on February 9 and intended to use the pay telephone in front of City Hall. The defendant stated that while using the telephone he observed a suspicious individual whom he described. 2 He also described a rod and bag carried by this individual. The defendant then assisted the police in drawing a composite picture of the individual. The defendant looked through the police photographs but did not make an identification. The defendant left the station.
On February 13, Guilfoyle got in touch with Barnes to get a further description of the suspicious individual. Barnes denied he was with the defendant on February 9. Because of discrepancies between Barnes’s statement and the defendant’s, the police asked both Barnes and the defendant, separately, to come to the police station. The police recited the Miranda warnings and had the defendant read a Miranda card aloud to the police. The defendant said he understood the warnings and signed the card. The officers witnessed the signature. 3
The defendant conferred with Barnes for a few minutes. The defendant then told the police he lied when he said he was with Barnes.
4
He said he would now tell the truth, and described
The officer then asked why the defendant, who said he was a licensed practical nurse, had not tried to help the victim. The defendant changed his story and said he had seen a man trying to have sex with a body. The man saw the defendant and threatened the defendant and the defendant’s family if the defendant said anything. The defendant also changed the time of the incident from 12:30 a.m. to 2 a.m. During this interview, the defendant interrupted the officer once to say, “You won’t find my fingerprints on her” and three times to say, “The hair won’t match mine.”
The officer who coordinated the investigation of the murder, Lieutenant LaMothe, took over the interview of the defendant. The Miranda warnings were repeated, and during the course of this interview, the defendant told the police, “I banged her head on the cement.” **** 5
1.
The defendant’s custodial statements.
The defendant argues that the judge erred in admitting in evidence the defendant’s confession to police officers. He asserts that the interrogating officer used a psychological stratagem to break down “his normal will to protect himself and render[] [him] indifferent
At the time of the interrogation, the defendant was nineteen years old. He attended school through the tenth grade and thereafter earned a high school equivalency certificate. The defendant was of above average intelligence. The defendant had a history of psychiatric treatment and was diagnosed as suffering from “bipolar disorder, mixed type with underlying strong borderline personality character disorder.”
7
LaMothe had no knowledge of the defendant’s psychiatric history until the conclusion of the interrogation, at which point the defendant informed LaMothe of his prior psychiatric treatment. The judge
The defendant was at the police station approximately nine hours, 8 during which time he was given water and tonic, cigarettes, and bathroom privileges, and was offered food, which he refused. He was not fatigued. The judge found that the defendant was not “unduly nervous” and was “coherent and . . . unaffected by his surroundings.” The judge determined that the defendant was alert and cooperative. The judge found that the statements were not the product of intimidation or coercion.
LaMothe knew from the defendant’s mother that the defendant had a nickname, “Skipper.” During the interrogation, LaMothe addressed the defendant alternately as Skipper and as Arthur. The defendant told LaMothe that he preferred to be called Arthur. LaMothe showed the defendant the Miranda card he had signed and asked him if he remembered his rights. The defendant replied that he did. LaMothe pointed out to the defendant that he had not asked for a lawyer and had not asked to leave. He asked the defendant why he had not left. LaMothe described all the discrepancies in the stories the defendant had given so far and asked him to explain what had really happened on the night of February 9.
LaMothe asked questions as to what the defendant had done, and what Skipper had done, sometimes speaking of Skipper in the third person. The defendant replied, sometimes referring to himself as Skipper and sometimes using the first person. He also stated that he and Skipper were the same person. He stated that Skipper had taken off the victim’s clothes and hit her with his bag. He then said, “I hit her head against the cement.”
The defendant described generally what the victim had been wearing, and stated that her underpants had been white and
At the conclusion of this interview LaMothe asked the defendant if he would dictate and sign a typed statement. The defendant refused and asked to see his mother. At that time, he told LaMothe that he had had psychiatric care in the past. The police called his mother and, when she arrived, told her that they were planning on charging the defendant with murder.
A confession, to be admissible, must be “the product of a free intellect,”
Townsend
v.
Sain,
2.
Motion for a required finding of not guilty.
The defendant argues that the evidence is insufficient to warrant a verdict of
The defendant asserts that, because the extreme cold also contributed to the victim’s death, the verdict of murder in the first degree is not warranted. We do not agree. “The longstanding rule in this Commonwealth is that ‘ [i]f a person inflicts a wound with a deadly weapon in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result.’ ”
Commonwealth
v.
Fernette,
Last, the defendant contends that, if he acted in anger, he did not act with the “cool reflection” which is required for a conviction based on deliberate premeditation. See
Commonwealth
v.
Blaikie,
The essence of the defendant’s claim is that during the interrogation the defendant said that “Skipper” hit the victim because he was angry, and that if the victim pulled “Skipper’s” hair that would make “Skipper” angry.
14
Those statements are insufficient to raise the issue of reasonable provocation or sudden combat. “Speculation that there may have been combat or provocation between the victim and the defendant is not enough to require a [voluntary] manslaughter instruction.”
Commonwealth
v.
DeArmas,
Contrary to the defendant’s suggestion, “not all physical contact ... is sufficient to require a manslaughter instruction even though the victim initiated the contact.”
Commonwealth
4.
The instruction on malice.
The defendant argues that a portion of the jury instructions on malice requires reversal of his conviction. In support of his conclusion, the defendant focuses on one sentence in the instructions on malice. “We, however, view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury.”
Commonwealth
v.
Sellon,
The judge in a portion of the instructions on malice used the words “with a mind inflamed by recklessness to such an extreme degree that it might rightfully be described as indicating a heart devoid of social duty and fatally bent on mischief, there is proof of malice . . . .”
15
The defendant asserts that the use of the word “recklessness” essentially negated the requirement of intent. That sentence, however, was part of an extended discussion of malice which repeatedly instructed the
5.
Relief pursuant to G. L. c. 278, § 33E.
The defendant asks that we exercise our power under G. L. c. 278, § 33E, in his favor and reduce the verdict to manslaughter. The defendant asserts that his character, age, and lack of a prior criminal record all suggest that this is “a tragic case in which a minor controversy between strangers exploded into the killing of a human being.”
Commonwealth
v.
Keough,
The circumstances of the killing, the number of blows, the injuries inflicted on the victim, and the leaving of the victim unclothed and injured in extremely cold weather do not support a conclusion that the verdict of guilt on the charge of murder in the first degree is against either the law or the evidence in a large or nontechnical sense. See Commonwealth v. Garabedian, 399 Mass. 304, 316-318 (1987).
Judgment affirmed.
Notes
The defendant filed a motion for a required finding of not guilty at the close of the Commonwealth’s case. We therefore consider the evidence introduced up to the time the Commonwealth rested its case. See
Commonwealth
v.
Amazeen,
The description resembled the appearance of the defendant.
The judge found that the defendant was not under arrest at the time of the warnings, but that recitation of the warnings was a “matter of normal cautionary police procedure.”
At trial, Barnes said that during the evening of February 10, the defendant
At trial, but not at the hearing on the motion, Barnes said he heard the defendant refer to himself as Skipper. Barnes also said that the defendant carried a maroon bag and a purple duffle bag. These items were similar to those described by the defendant as having been carried by the suspicious individual he described to police in the first interview. Items matching the defendant’s description were found in the defendant’s home.
On February 10, before he had spoken to the police, the defendant told a coworker at his place of employment “he was late for work because there was a murder in Lowell[,] . . . that the police were . . . asking people if they had seen anything!,] . . . that he was asked too, and that is why he was late.” At lunch, the defendant asked the same worker “what [she] would do if [she] witnessed a murder.” He also asked her if she “would tell if [she] knew who did it.” The witness asked the defendant “if he had anything to do with it.” The defendant “laughed [and] said no one would ever know.”
In support of his motion to suppress, the defendant argued that all his statements to the police were custodial. He admitted that he had been given Miranda warnings but argued that his statements should be excluded because they were involuntary. He also moved to suppress the physical evidence obtained through use of the allegedly involuntary statements. The motion was denied “with the exception of defendant’s statements regarding the location of his gym bag,” which had been made in response to questioning after the defendant exercised his right to remain silent.
On appeal, the defendant argues only that the portion of the interrogation conducted by LaMothe, which the judge found to be custodial, should have been excluded as involuntary. We deem all other issues waived. Mass. R. A. P. 16 (a) (4), as amended,
Bipolar disorder is the term now used to describe manic-depressive illness.
The judge found that the custodial interrogation with LaMothe began at approximately 2 a.m. and concluded at approximately 3.30 a.m.
We reach our conclusion without regard to the judge’s finding that “when speaking, the defendant has a habit or style of referring to himself in the third person. This has been noted by friends and teachers who consider this to be his style of speaking.” In his brief, the defendant correctly points out that at the hearing on the motion only the defendant’s art teacher for the sixth, seventh, and eighth grades said that the defendant spoke in the third person.
The judge did allow the defendant’s motion to suppress all references in the interrogation to the defendant’s sexual preference.
At trial, the defendant did not so limit his motion.
The defendant argues that his case is controlled by
Commonwealth
v.
McInerney,
The defendant concedes that he failed to meet the formal requirements of Mass. R. Crim. P. 24 (b),
There is no evidence that the victim pulled the defendant’s hair. Although hair was found in the victim’s hands, that hair was determined to be the victim’s own hair.
The defendant’s requested instruction number 34 reads as follows: “ ‘Malice’ is a state of mind showing a heartless regard [szc] for life and safety of others, a mind deliberately bent on mischief, a generally disproved [szc], wicked and malicious spirit.”
The defendant bases his argument on a portion of the statement excluded from jury consideration. See note 10, supra. The defendant did not specifically adopt LaMothe’s hypothetical suggestion as to what might have happened.