Lead Opinion
The defendant Carlos Garcia was convicted of murder in the second degree after a trial by jury in 1970. The judge imposed the statutory sentence of life imprisonment. At trial, Garcia admitted killing the victim, Francisco Alvarado, but claimed that he had acted in self-defense. The case is now before us in a consolidated appeal under G. L. c. 278, §§ 33A-33G, assigning alleged errors during the trial and in the denial of the 1977 motion for a new trial (G. L. c. 278, § 29).
We briefly summarize the evidence presented at the 1970 trial.
The next day, July 10, Garcia went to Carmen Baez’s house. He told her he wanted no problems with anyone, and apologized for what he had done. Carmen refused to forgive him and told him they were not afraid of him. Garcia then went to a place where he had hidden a gun that he had purchased from a “hippie” and he loaded it and put it in his pants. He also put six or seven extra bullets in his pocket and proceeded to Main Street, near Monihan’s Cafe. While walking past Monihan’s, he saw Francisco Alvarado, the victim, who said to him, “I owe you one from last night,” or words to that effect. Garcia saw nothing in Alvarado’s hands, but Alvarado then reached for his back pocket. Garcia thought Alvarado was reaching for a “knife or something,” and thereupon he took the gun from his pants and began firing at Alvarado. He continued to fire after Alvarado put both hands on his stomach and began to fall. Witnesses saw Garcia fire three times after Alvarado was on the ground. The State pathologist testified that there were two bullet entrance wounds in the front of the victim’s body and three in the back, and that one of the bullets entering from the rear penetrated the heart and caused death. Garcia conceded during his testimony that he could have run away from Alvarado, “but I didn’t because I was scared.”
Immediately following the shooting, Garcia ran, hid the gun and then went to look for a policeman. He found a plainclothes police officer, to whom he said, “I did it, I did it,” before the officer spoke. The officer (Healey) asked Garcia if he understood English, and received an affirma
Shortly thereafter, the officers took Garcia to the police station, where he was again read his Miranda rights in English and in Spanish. A Spanish speaking police officer (Guittar) interpreted for him throughout the interrogation, and Garcia gave the police a signed statement concerning the shooting. Officer Guittar translated the written statement for Garcia before the latter signed it.
Several of Garcia’s alleged errors hinge on his claimed difficulty in speaking and understanding English in 1970. He contends that he is entitled to relief by reason of this language difficulty as it bears upon the questions (a) whether he waived his rights under the decision of Miranda v. Arizona,
1. Application of and compliance with Miranda decision. We are concerned here with three separate statements made by Garcia to the Worcester police, all of which the judge admitted in evidence at the trial.
We next consider two separate statements made by Garcia after he was taken in custody by the police. One consisted of his conversation with the police when they first took him in custody and, at his direction, drove him to the spot where he pointed to the gun which he had hidden there after shooting Alvarado. The other consisted of a written statement which he signed at the police station, admitting that he “took the gun out of [his] pants and shot [Francisco Alvarado] . . . three or four times.” Although both of these statements were made by Garcia before he was formally booked by the police, we treat them as made in the course of custodial interrogation. We treat custody as having begun at the moment when the police first placed Garcia in the cruiser. Miranda, supra at 444. Commonwealth v. Haas,
The admissibility of these two statements made by Garcia while in custody and without benefit of counsel gives rise to several questions. The first is whether Garcia truly understood his Miranda rights (given to him in English in the cruiser and both in English and in Spanish at the police station) in order to be capable of waiving them “knowingly and intelligently,” and, if not, whether the police were en
When the judge denied the motion to suppress Garcia’s in-custody statements to the police, he made no report of facts found in support of his ruling. We emphasize once again the importance of findings of subsidiary facts in such a situation. Commonwealth v. Hosey,
We summarize at this point the evidence which, in addition to that noted earlier in this opinion, bears on this issue. Several of the officers had conversations in English with Garcia and none had any difficulty communicating. The interrogation at the police station was conducted largely in English, with Officer Guittar translating only a few times. Detective O’Leary, who obtained the statement at police headquarters, testified that he called Officer Guittar as a precaution, and that it was common police practice to call an interpreter for a Puerto Rican person suspected of a serious offense. The police conducted no interrogation and elicited no statement from Garcia before Guittar arrived. Although Garcia now says that Guittar spoke a different type of Spanish, Guittar testified that he understood Garcia, and that Garcia at the time said he understood Guittar. The statement signed by Garcia was read to him in both English and Spanish; he said he understood it and wanted to sign it. On the witness stand, Garcia corroborated the essential facts in the statement.
Where, as here, the voluntariness of statements made during a custodial interrogation without counsel present is at issue, the State bears a heavy burden of proving knowing, intelligent and voluntary waiver. Miranda, supra at 475. Commonwealth v. Dustin,
The Fifth Amendment exclusionary rule is largely a prophylactic measure to discourage coercive or otherwise improper police procedures. Miranda, supra at 467. Commonwealth v. Jackson,
The evidence in the record supports the subsidiary findings of the judge, whether they be those implied in his denial of the motion to suppress or those expressed in his denial of the motion for a new trial, that the defendant understood the Miranda warnings, that he knowingly and intelligently waived his rights thereunder and elected to make the statements in question to the police, and that the statements were made by him freely and voluntarily. Such findings in turn support the judge’s action in denying the motion to suppress and his admission of the statements in evidence. There was no error in so far as the Miranda rule is concerned.
In all of our discussions to this point in this opinion we have referred to Garcia’s in-custody statements without attempting to classify them as either admissions or confessions. That is unnecessary because of the following language in Miranda, supra at 476: “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.”
In charging the jurors the judge instructed them that if they found that prior to the time Garcia made any in custody statements to the police they did not inform him of his Miranda rights, they should disregard the statements. He instructed them further that, if the Miranda warnings were given but that, because of language difficulties or for any
2. Voluntariness of Garcia’s statements, apart from requirements of Miranda decision. “The practice has long been established in this Commonwealth 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 by the presiding judge in the absence of the jury. If he is satisfied that they are voluntary, they are admissible; otherwise they should be excluded. If the judge decides 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.” Commonwealth v. Marshall,
This court has held in a number of decisions that this “humane practice” gives the defendant a right to a preliminary hearing and decision by the presiding judge on the voluntariness of “a confession, as that word is accurately used in the criminal law,” but not “in case of mere incriminating admissions or declarations of subordinate or independent facts” which fall short of a confession. Commonwealth v. Haywood,
Although the decisions limiting the application of the “humane practice” to confessions have not been overruled to date, there have been statements in some of our more recent decisions which seem to question the exclusion of admissions from its operation. In Commonwealth v. Wallace,
We are satisfied from our examination of the record in this case that the judge followed the “humane practice” prescribed by our cases. He held a preliminary hearing and
3. Ineffective assistance of counsel. Garcia’s claim that he was denied effective assistance of counsel, which he raises for the first time on direct appeal, is grounded solely in his asserted difficulty with the English language. Garcia’s trial counsel spoke no Spanish, and Garcia now maintains that he was unable to cooperate with him in preparing his defense.
As we recently noted, there is no isolated constitutional test to determine whether a defendant’s due process right to effective assistance of counsel has been violated. Commonwealth v. Rondeau,
a. The pretrial stage. Garcia’s family hired and paid for the trial attorney. The attorney experienced no difficulty communicating with Garcia, and neither Garcia nor his family complained about any lack of understanding at any time during the pretrial preparatory stage or at trial.
b. The trial. Garcia has not alleged, through his testimony at the hearing on the motion for a new trial, or through his new counsel who is representing him on appeal, any specific prejudice to his defense as a result of any language barrier. He has not asserted that a defense was lost; he simply maintains that he could not communicate with his trial attorney his reasons for carrying the gun on the evening of the homicide, and the reason he feared that Alvarado would attack him. Garcia’s present claim is (a) that he had a “great number of enemies on the street” because of his background and reputation as a professional boxer and street fighter and therefore on the day of the homicide he had reason to fear that Alvarado would attack him with a knife, and (b) that his language difficulty prevented him from explaining this to his lawyer.
This subject was raised in “Claim II” of Garcia’s motion for a new trial. The judge’s decision in relation to that point opens with the finding that “during all stages of the. proceedings the defendant was able to adequately consult with counsel and assist counsel in the preparation of his de
The judge charged the jury on the circumstances in which a killing in self-defense would be lawful, as well as the circumstances in which a killing, although in self-defense, but by the use of excessive force, would constitute manslaughter. Commonwealth v. Shaffer,
4. Confrontation right.' Garcia’s contention that he could not understand what transpired at the trial essentially alleges a violation of his right to be “present” at his trial to confront the witnesses against him. See Sixth Amendment to the United States Constitution; art. 12 of the Declaration of Rights to the Massachusetts Constitution; G. L. c. 263, § 5; G. L. c. 278, § 6; United States ex rel. Negron v. New York,
The record in the present case amply demonstrates the judge’s continued sensitivity to Garcia’s language problem. The judge conducted a hearing in which he questioned Garcia directly. At the conclusion of the hearing, the judge was not convinced that Garcia needed a translator even for his own testimony. At all times during the probable cause hearing, the hearing on the motion to suppress, and the trial, Garcia had a qualified interpreter. While she did not provide a word-for-word translation of the proceedings, she conferred constantly with Garcia and informed him of the substance of questions, answers, and court rulings. Although the judge did not direct that pauses be allowed for translation while other witnesses testified, the interpreter said she translated for Garcia at the same speed as the witnesses were speaking. It is evident from the record that Garcia had an interpreter if and when he needed one, and that his rights were fully protected.
5. Jury instructions. Garcia alleges three errors in the charge to the jury: inadequate instructions on the meaning of “reasonable doubt”; failure to instruct the jury that the Commonwealth bore the burden of proving that his confession was voluntary; and improper instructions on the standard by which to assess the voluntariness of his confession.
a. Reasonable doubt. The defendant alleges that the definition of reasonable doubt does not comport with our decision in Commonwealth v. Ferreira,
Before considering the propriety of the present charge, however, we note that defendant’s counsel did not object to that portion of the charge which defined reasonable doubt. In the absence of an objection and exception, although this court may still find reversible error under G. L. c. 278, § 33E, it will do so only “upon a showing of grave prejudice or substantial likelihood that a miscarriage of justice has occurred.” Commonwealth v. Roberts,
The constitutionally significant error, if any, in the charge is. not that it referred generally to important decisions in the jurors’ daily lives.
Only once before have we considered a charge which included specific examples, and we found the use of analogies in the context of the entire charge, not to constitute reversible error. Commonwealth v. Grace,
Although we find constitutional error in this charge, we must also consider whether this holding applies to the present defendant, whose trial took place some seven years before our decision in Ferreira, supra. We believe that In re Winship,
We must next consider whether the error in the present case, while of constitutional dimension, was harmless. Chapman v. California,
b. Burden of proof. Garcia further maintains that the judge failed to tell the jury that the Commonwealth bears the burden of proof of the voluntariness of his statements. While the judge did not specifically so state, he told the jury that the Commonwealth must prove every element of the case beyond a reasonable doubt, and then included the confession (and its voluntariness) as part of the case. The jury could easily have inferred that the Commonwealth had to prove the voluntariness of Garcia’s confession beyond a reasonable doubt. Although, as discussed above, the judge’s definition of reasonable doubt was deficient, even assuming — and we do not decide this — that the instructions effectively reduced the standard of proof to preponderance of the evidence, that is the Federal constitutional standard for voluntariness of a confession. Lego v. Twomey,
c. Standard for voluntariness.
We have noted in a recent decision that the jury’s consideration of the issue of voluntariness of a confession is not limited to the question whether the Miranda warnings were given, or whether the rights thereunder were waived, and held that additionally the jury must consider any circum
6. Finally, the defendant asks that we exercise our discretion under G. L. c. 278, § 33E, to reduce the verdict to manslaughter. This we decline to do. As discussed above, the jury could reasonably have found that there was no right to self-defense, either because Garcia’s fear that Alvarado had a knife was not reasonable, or because Garcia could have retreated, or both. Even if the jury found that Garcia had a right to self-defense initially, they may have found that the right terminated when Alvarado fell to the ground (after which the fatal shot was fired). The jury therefore properly rejected a reduction of the crime to manslaughter through improper use of self-defense.
Judgment affirmed.
Order denying motion for new trial affirmed.
Notes
After the 1970 verdict, the defendant did not appeal within the statutory twenty-day time limit, G. L. c. 278, § 33B. At the hearing on the motion for a new trial, there was conflicting evidence whether Garcia had declined to appeal within the time limited by statute. In 1975, Garcia filed a petition seeking reinstatement of his appellate rights, and it was allowed by a single justice of this court. Garcia subsequently filed a motion for a new trial, which was heard in 1977. The judge who presided at the trial denied the motion, and Garcia appealed the denial to the Appeals Court. We transferred the case to this court on our own motion, and consolidated the direct appeal with the appeal from the denial of the motion for new trial.
Further evidence will be discussed below in conjunction with the errors alleged; evidence presented at the new trial motion hearing will also be discussed below.
Garcia admitted at trial that he wanted to talk to a policeman after the shooting “ [b]ecause I knew I had shot him and I wanted to see the police ... I didn’t know the law. All I want[ed] was him to take me away.” Healey did not advise Garcia of his rights.
In certain limited circumstances, the police are charged with observing greater caution in relying on signs by the accused that he understands and waives his Miranda rights. See Commonwealth v. Hosey,
Garcia testified that he did not complain because he was “scared” and ignorant of the law, and his family failed to act because they were unschooled. We are, of course, mindful that constitutional rights are not accorded only to those who complain of their violation, but in this case we conclude that no constitutional violation was present.
In oral argument, Garcia’s appellate counsel raised the broader question whether there is a constitutional right to an attorney who speaks one’s native language. See generally Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454 (1969). We recognize that there are many persons in this country for whom English is a second language, and we in no way wish to underestimate the importance of the rights of confrontation and effective representation. Nevertheless, we believe that a per se entitlement to bilingual attorneys is neither necessary nor desirable for several reasons. First, at pretrial stages informal interpreters (such as relatives and friends) are available. See Jara v. Municipal Court,
Some language barrier cases have been brought on the grounds of ineffective assistance of counsel, e.g., Commonwealth v. Alicea,
Cases reversed because of failure to provide an interpreter involve either an obvious inability of a defendant to comprehend the import of the testimony against him, or to communicate his defense to the fact finder, or a judicial insensitivity to a language problem. See, e.g., United States ex rel. Negron v. New York,
The judge charged the jury that: “The words, ‘beyond a reasonable doubt,’ on the other hand, do mean that after hearing the evidence, after discussing it among yourselves, after determining what part, if any, of any witness’s story you’re going to believe, after determining what inference you’re going to draw from the evidence, you believe, all twelve of you, that you must be sure, as sure as you want to be when in your own lives you had to make important decisions involving your personal, your social or your economic lives. For example, I am sure that all of you at some time or another in your lives have had to decide whether to quit school or to go on with your education, whether to get married, whether to stay single, whether to get divorced or stay married; whether to buy a house or not, whether to increase the mortgage on the house or not, and when you have had to make this type of a decision, you have weighed the pros and cons. You have carefully thought about it, and if there was a reasonable doubt in your mind that you were not doing the right thing, then you didn’t do it. I am not talking about decisions that you have to make of a routine nature, like what color tie to put on in the morning, whether to wear a blue shirt, or what color beads to wear with a particular dress, or whether to buy a Ford or a Chevrolet; I’m talking about more important decisions in your own lives where you weighed the pros and cons seriously and knowing that it is impossible to be absolutely sure, for example, that you were doing the right thing when you decided to get married or get divorced, to buy a house, but if you had a reasonable doubt in your mind that this was not the right thing to do, then you didn’t do it, this is what the law means by the expression, ‘beyond a reasonable doubt,’ that type of sureness that compelled you to act when you, yourself, had to make important decisions.”
It is also our “unbroken practice” not to allow use of a motion for new trial to compel a judge to review questions of law which could have been raised at the trial. Commonwealth v. McLaughlin,
State and Federal courts, including the United States Supreme Court, have consistently approved general references to the daily lives of jurors. See, e.g., Hollandv. United States,
We do not believe that it is wise to dissect a charge to determine if each part is constitutionally adequate. Instead we think a court must consider a charge in its totality to assess the impression it may have left with jurors. Commonwealth v. Rodriguez,
This court has never held, as a matter of constitutional law, that the defendant has a right to have the jury reconsider the voluntariness of his confession. Commonwealth v. Alicea, supra at 522-523. Commonwealth v. Johnston,
The Federal Constitution of course requires that at some point in the proceedings, before a confession is admitted in evidence, the defendant must “have a fair hearing and a reliable determination [by a judge] on the issue of voluntariness, a determination uninfluenced by the truth or falsity
The defendant argued before this court that the judge erred in not instructing the jury to consider the “totality of the circumstances.” Although the judge did not use this phrase, he instructed the jury in effect to consider all the circumstances that the evidence raised, and that we considered in part 1 of this opinion.
This case was decided before our decision in Chung, supra, in which we noted that we had not yet decided whether the question of compliance with the Miranda requirements of a warning must be submitted to the jury for their decision. Nevertheless, we recognized that the question whether such a warning was given might properly be considered on the issue of voluntariness of a confession.
Dissenting Opinion
(dissenting). I agree with the majority that the charge to the jury on reasonable doubt was erroneous. I do not believe, as the majority holds, that an erroneous charge on reasonable doubt can constitute harmless error. The majority cites no cases which so hold, and I am aware of none. See Dunn v. Perrin,
The majority is apparently convinced that the error was harmless beyond a reasonable doubt because of the “overwhelming evidence of guilt.”
This court stated in Connolly v. Commonwealth,
The prosecution bears the burden of proof on appeal that the error was harmless beyond a reasonable doubt. Chapman v. California,
See text supra at 441.