Paul J. Leahy was convicted of the brutal stabbing
In his appeal Leahy contends that (1) his confession should have been suppressed because neither it nor the waiver of his Miranda rights was voluntary, police questioning was improperly reinstated after he had asserted his right to remain silent, and his statutory right to make a telephone call was not honored; (2) the judge’s refusal to exclude jurors who had been exposed to any media publicity concerning his case denied him a fair trial by an impartial jury and impermissibly diminished or constrained his ability to use peremptory challenges; and (3) the judge’s decision not to repeat the charge to the jury shortly after they had begun their deliberations violated his right to be tried by a jury unconfused about the law which they were to apply. We conclude that these claims have no merit. In addition, our review of the case pursuant to G. L. c. 278, § 33E, has not revealed any reason to order a new trial or reduce the jury’s murder verdict.
1. Background. According to his confession, which was admitted in evidence, on July 17, 2002, Leahy was working the 10 p.m. to 6 a.m. shift at the Burger King restaurant adjacent to a well-known rest area on Route 24. Its public facilities are open twenty-four hours per day. Leahy saw the victim around 4 a.m., when she entered the building to use the women’s bathroom. Considering whether to rob her, Leahy took out his knife and walked toward the bathroom. When the victim opened the door to leave, she came face to face with him and began to scream. Leahy forced her back into the bathroom and attempted to cover her mouth with his hand. A battle ensued, during which the victim told Leahy that she had been stabbed. The fight seemed to subside. Leahy went to the sink to wash his hands and asked the victim why she was “doing this” when all he wanted was to
After stabbing her, Leahy dragged the victim into a stall, picked up her wallet from tire floor, and again began to wash the blood off his hands and arms. At this point, a State police lieutenant, who had heard muffled screams and at least two thuds while in the adjacent men’s room and observed drops of blood just outside the door to the women’s room, opened the door. The victim’s blood was visible throughout the bathroom. When the officer demanded to know what was going on, Leahy responded, “I lost it. I lost it.” Leahy was taken into custody and read the Miranda warnings. Bridgewater police and emergency medical personnel arrived on the scene. After Leahy acknowledged that he understood his rights, he was asked whether he had any weapons on his person.
Leahy was then transported to the Middleborough State police barracks. There his bloody clothes were taken as evidence. He spent approximately two hours handcuffed to a bench in the booking room, dressed in a hospital gown, and facing large print wall posters containing Miranda warnings and information regarding an arrestee’s right to make a telephone call. When a State trooper assigned to the investigation arrived at the barracks, he asked Leahy whether he had read the Miranda poster, whether he understood his rights, and whether he had been previously arrested and had those rights explained to him. Leahy answered all of these questions in the affirmative. The trooper then asked Leahy if he wanted to speak with him, to which Leahy responded, “Not right now, in a minute. I need to figure
Approximately twenty minutes later the trooper approached Leahy and again said that “when you need to figure things out, it’s good to talk to somebody else about them.” Leahy agreed to talk to the officer, at which point he was uncuffed from the bench and brought to a conference room. Leahy was shown and read a State police Miranda waiver form and an arraignment waiver form. After indicating that he understood the rights described on the forms (including his right to make a telephone call) and after signing them, Leahy gave a statement confessing to having stabbed and robbed the victim. When Leahy finished his statement, crime scene investigators took swabs from his hands and the police summoned medical personnel to treat his cuts, which were open but not then bleeding.
Leahy’s defense at trial was not identity, but that the Commonwealth’s evidence was inadequate to establish that the killing was premeditated or that robbery (the predicate offense for felony-murder) was intended.
2. Motion to suppress. Leahy filed a motion to suppress his confession, alleging that he was questioned without being advised of his Miranda rights; that any waiver of those rights was not made knowingly, intelligently, and voluntarily; that his confession was not voluntary; and that the questioning violated his right to a prompt arraignment and his statutory right to a telephone call. Leahy’s affidavit, filed in support of the motion, simply described the injuries to his hands, the fact that he was handcuffed in the middle of a police station, and his purported hope at the time that he would receive medical help for his pain after talking with the police. His memorandum focused solely on the voluntariness of his Miranda waiver and his confession. At the suppression hearing Leahy principally argued that the waiver of his Miranda rights was not voluntary. The motion judge (who was also the trial judge) made findings of fact and rulings of law and denied Leahy’s motion. The judge concluded that both Leahy’s Miranda waiver and his confession were voluntary. There was no error.
The Commonwealth bears the burden of establishing that a
The judge found that Leahy had been fully informed of his Miranda rights on four occasions, that he understood those rights, and that he voluntarily signed the Miranda and prompt arraignment waiver forms. Commonwealth v. Magee,
Leahy averred, however, that the trooper’s suggestion that
Due process requires a separate inquiry into the voluntariness
For the first time on appeal, Leahy contends that the State trooper did not “scrupulously honor[]” his decision to terminate questioning when he reinitiated it after Leahy stated that he did not want to speak “now,” needed “to figure some things out,” and would speak “in a minute.” See Michigan v. Mosley,
In the instant case, Leahy had been informed of his Miranda rights twice at the scene and twice acknowledged that he understood them. After being so advised, he told the arresting officer that he was carrying a knife. He thus waived his right to remain silent. Later, at the barracks, when the investigating officer arrived and asked Leahy if he wanted to speak, he replied, “Not right now, in a minute. I need to figure some things out.” This response was not an unequivocal assertion of his right to
Finally, Leahy asserts that his confession should be suppressed because he was not informed of his right to make a telephone call until after he agreed to speak to the investigating officer. General Laws c. 276, § 33A, provides in relevant part:
“The police official in charge of the . . . place of detention . . . shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such . . . place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter.”
Although the statute provides no remedy for a violation, this court has “grafted an exclusionary rule to it. . . [i]f intentional police misconduct deprives a defendant of the statutory right” (citations omitted). Commonwealth v. Alicea,
The defendant bears the burden of establishing an intentional violation of the statute. See Commonwealth v. Scoggins,
Assuming there was evidence of a violation of the statutory right, nothing in the evidence supports a conclusion that it was intentional. See Commonwealth v. Painten,
Additionally, there is no evidence that this alleged violation was part of an effort to encourage Leahy to incriminate himself. Indeed, before the start of substantive questioning, the trooper thoroughly reviewed with Leahy his Miranda, telephone, and arraignment rights as set out in the State police waiver forms. If the police had intended to deprive Leahy of his right to make a telephone call in order to secure his statement, it would have made little sense to inform him of that right prior to obtaining such a statement. Where delay “was not designed to gain inculpatory information” and the “defendant was not questioned during [the delay] but simply made to wait for the officers’ arrival,” this court has concluded such delay to be unintentional. Commonwealth v. Johnson,
3. Jury empanelment. The trial began on September 22, 2003, in the Superior Court in Plymouth County sitting at Brockton. In the fourteen months between the murder and trial, media coverage had been extensive. Prior to the start of jury selection, Leahy moved to exclude for cause any potential juror who had been exposed to any of that coverage and for the award of additional peremptory challenges. In support of these motions, Leahy provided the judge with approximately seventy-five articles (including front page articles in The Boston Globe, The Boston Herald, The Brockton Enterprise, and The Patriot Ledger) and a number of television news stories that reported on the murder. The vast majority of these articles were published either in July of 2002 (immediately following the murder) or in August of 2003 (in anticipation of the trial). Most of the articles contained information regarding Leahy’s criminal history (rape, assault and battery, breaking and entering, malicious destruction, etc.). Some described him as a repeat rapist or a registered sex offender. For example, on the first day of jury selection, the Metro section of The Boston Globe contained an article concerning this case entitled “Convicted Sex Offender Goes to Trial.” The Boston Herald and The Brockton Enterprise similarly published articles at the start of the trial referencing Leahy’s prior problems with the law. The motions were denied.
Leahy also sought individual voir dire of potential jurors. This motion was allowed. The judge first asked the potential jurors as a group the questions required by G. L. c. 234, § 28,
In support of his motion to exclude jurors who had been exposed to media coverage, defense counsel had emphasized that many of the news stories contained references to Leahy’s criminal background, that this information was both extraneous and highly prejudicial, and that exposure to it would make it impossible for a potential juror to be impartial. Accordingly, the judge directed his questions during individual voir dire to sorting out juror exposure to general information about the crime (to which they would be exposed during the trial) from exposure to information about the defendant himself. The judge excluded for cause any member of the jury venire who had been exposed to information regarding Leahy’s prior criminal history regardless whether they claimed they could be impartial.
During the empanelment Leahy used all of his peremptory challenges to strike persons exposed to media coverage about the crime who had not been removed for cause. At the conclusion of the process, jurors remained seated who had some exposure to that coverage.
Relying principally on Irvin v. Dowd, supra, Leahy argues that the judge incorrectly denied his request to exclude for cause all potential jurors who were exposed to any media publicity concerning the instant case. In that case, the United States Supreme Court concluded that a defendant had been denied a fair jury trial by impartial jurors because sensational media reports concerning six related murders, his confession to those murders, and his criminal background had been so pervasive in a small, rural Indiana community that juror impartiality was impossible. See id. at 725-726 (“the build-up of prejudice [was] clear and convincing”). Such extensive publicity overrode the credit usually given to a juror’s assertion of impartially. See id. at 727-728 (noting that “statements] of impartiality can be given little weight” where adverse publicity was so widespread that almost entire jury venire “admitted prejudice”).
The Supreme Court, however, has largely limited the holding in Irvin v. Dowd, supra, to its facts and rejected its application where there is no indication that the pretrial publicity was so pervasive or had such effect, e.g., Murphy v. Florida,
Similarly, Plymouth County, as part of metropolitan Boston, is a far cry from a small rural community in Indiana. Its popula
The circumstances created by the intensity of the publicity reported in Irwin v. Dowd, supra at 727, were extraordinary indeed: ninety per cent of the jury venire had a preconceived notion of the defendant’s guilt; two out of three jurors not excluded for cause had the same preconception. In contrast, most of the potential jurors in this case indicated that they had not formed any opinion about Leahy’s guilt; and each of the jurors not excused for cause denied having any preconceived notions about it. Unlike the Irvin Court, we have no reason to assume that those who expressed impartiality were lying or mistaken about their own ability to judge fairly. See Murphy v. Florida, supra at 802-303 (explaining that excusing twenty jurors out of seventy-eight person venire for cause “by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own”); Commonwealth v. Clark,
To the extent that Irvin v. Dowd, supra, and its progeny set forth any bright line rule, it is that jurors’ assertions of impartiality should be accepted by the judge unless extraordinary circumstances give some reason to question such assertions. “It is not required . . . that the jurors be totally ignorant of the facts and issues involved. ... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. at 722-723. See Murphy v. Florida, supra at 799 (Court’s decisions should not be
The judge was only required to “determine whether jurors [could] set aside their own opinions, weigh the evidence (excluding matters not properly before them), and follow the instructions of the judge.” Commonwealth v. Stroyny,
One of the questions required by G. L. c. 234, § 28, and asked by the judge was: “Do any of you know of any reason why you would not be impartial in this case and be able to render a true and just verdict based solely on the evidence and the law?” When questioning jurors individually, the judge first asked whether a juror had any affirmative responses to the questions he had addressed to the venire. The judge could properly credit a juror’s negative response to this question as an assertion of impartiality. If, during the voir dire, a juror acknowledged knowing something about the case (other than about the defendant’s background, which operated as an immediate disqualification), the judge usually asked that juror again whether he or she could impartially decide the case based on only the facts adduced in the court room. The judge conscientiously distinguished between persons that he believed could be impartial despite exposure to media coverage and persons that he did not believe could be impartial.
Leahy specifically takes issue with the empanelment of juror
Leahy also argues that the judge’s wrongful refusal to exclude potential jurors for cause forced him unnecessarily to expend his peremptory challenges on those jurors, denying him the ability to use the peremptory challenges for other purposes. “[T]he erroneous denial of the right to exercise a proper peremptory challenge is reversible error without a showing of prejudice,” Commonwealth v. Wood,
Leahy did not use his last peremptory challenge until the final seat on the jury was being filled, and made no showing that he was thereby forced to accept a juror he would have peremptorily challenged. Even if he had, we would not conclude that the judge committed reversible error, because the judge did not abuse his discretion in refusing to exclude for cause any of the jurors on whom Leahy exercised his peremptory challenges. See id. at 445 (rejecting claim of diminution of peremptory challenges where judge did not wrongfully refuse to excuse for cause any of fourteen jurors peremptorily challenged by defendant). The mere exposure to general media regarding this case did not require a juror to be excused for cause. Leahy, however, specifically points to four jurors that he peremptorily challenged who he contends, nonetheless, should have been excluded for cause. We address each of these jurors in turn.
The alleged error in the seating of one juror arises from his answer to the judge’s question whether he could be impartial even though he had heard media reports that Leahy had followed a woman into a restroom and strangled her. His answer was, “I think I could.”
The contested facts of this case did not concern the identity of the killer,
With respect to Leahy’s contention that the judge erred by not awarding him additional peremptory challenges, “there is no support in this record that additional challenges were required in order to obtain an impartial jury.” Commonwealth v. Lattimore, 396 Mass. 446, 450 (1985); Commonwealth v. Burden,
4. Refusal to reinstruct the jury. Leahy does not claim any error in the judge’s comprehensive and meticulous jury instructions, and we perceive none. Rather, Leahy suggests that the judge should have honored the jury’s request for complete reinstruction, and having failed to do so, permitted unconstitutional juror confusion as to the law governing the case to deprive him of due process under the Fourteenth Amendment to the United States Constitution and a fair trial under the Sixth Amendment. It has long been our rule that the “necessity, extent, and character of supplemental instructions in response to a jury request are matters within a trial judge’s discretion.” Commonwealth v. O’Connor,
We are satisfied that the judge acted within his discretion in refusing to reinstruct the jury completely where their request came twenty-five minutes after they retired to deliberate. It was wholly reasonable for the judge to assume that requiring the jurors to deliberate further would either resolve their need for any reinstruction or would focus their request on areas of true confusion. In fact, this is precisely what occurred. One hour after resuming their deliberation, the jury requested instruction whether, if they convicted Leahy on one theory of murder in the first degree, they needed to determine whether he was guilty under the other theories of murder in the first degree. The judge responded to this request, and also reinstructed them regarding the need for unanimity in their verdict. The jury obviously understood that the judge’s refusal of their first request for general reinstruction was not intended to discourage them from asking further clarifying questions (“The court will not re-instruct you at this time” [emphasis added]).
Moreover, there is no support for the contention that the request for general reinstruction was due to any confusion on the part of the jury. The court officer who transmitted the note to the judge stated that one juror requested reinstruction, but never explained why. Confusion cannot be simply inferred from a reinstruction request. “It is not uncommon for jurors to request reinstruction, not because they are confused, but because they are proceeding conscientiously with deliberations and want to be reminded of an instruction.” Commonwealth v. Thomas,
5. General Laws c. 278, § 33E. Because the defendant was tried and convicted on a charge of murder in the first degree, we review the whole case broadly to decide whether, for any reason, justice may require either a new trial or a verdict of murder in the second degree or manslaughter. G. L. c. 278, § 33E. “The search under § 33E is a more general and an obligatory one for a result that may be ‘more consonant with justice,’ ” Commonwealth v. Davis,
Judgments ajfirmed.
Notes
The defendant was convicted of murder in the first degree under alternative theories of felony-murder and extreme atrocity or cruelty. He was also convicted of kidnapping, armed assault with intent to rob, and armed robbery.
Leahy was, in fact, read the Miranda warnings by two different officers at the scene. In both instances, he indicated that he understood those rights.
The testimony at the hearing on the motion to suppress was that the injuries did not appear to be serious and were treated solely by wiping the cuts with alcohol and applying a few bandages. Photographs of Leahy’s hands and neck, admitted in evidence at the hearing, were consistent with this testimony.
To the extent that Leahy argues that his release from being handcuffed to the bench was conditioned on his agreement to speak to the police, there was no evidence to support that claim. At the motion hearing, the officer testified that Leahy was to be released from handcuffs, booked, and moved to a cell once he decided whether or not he wished to give a statement.
The test for determining whether a waiver was voluntary “is essentially the same as that used for determining the voluntariness of statements under the due process clause.” Commonwealth v. Edwards,
Nothing in Leahy’s motion to suppress, his affidavit, or the supporting memorandum contends that his rights were violated by the police reinitiating questioning after he sought to terminate it by asserting his right to remain silent. At the motion hearing, what Leahy intended by his statement that he needed a “minute” to figure things out before speaking to the police came up only in the context of the voluntariness of his Miranda waiver. In response to a suggestion by the judge that Leahy’s request for “a minute” before speaking amounted to a refusal to be interrogated, defense counsel merely said, “So, I don’t know — I would suggest that it’s a refusal for that time. There’s an issue, then, whether or not it invites another attempt or indicates that he’s mulling it over.” Counsel then argued that the police improperly took advantage of
In Michigan v. Mosley,
When asked whether the defendant had been allowed to make a telephone call prior to the time the State trooper first saw him (two hours after Leahy had been taken to the booking room at the State police barracks), the trooper answered, “I do not believe. I don’t know. I don’t know if he was allowed to use the phone . . . .” Later at the hearing, similar colloquies ensued, which were also not dispositive of the issue.
In denying Leahy’s motion for additional peremptory challenges, the judge stated that after individual voir dire obtained indifferent jurors, additional challenges would not be necessary.
General Laws c. 234, § 28, requires that the “Court shall . . . examine ... a person . . . called as a juror ... to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice .... In a criminal case such examination shall include questions designed to learn whether such juror understands that a defendant is presumed innocent until proven guilty, that the commonwealth has the burden of proving guilt beyond a reasonable doubt,
For example, one juror was excused, without regard to his assertion that he could be impartial, after he acknowledged that he knew about the defendant “just what I read in the papers about him being previously released or something like that from prior incarcerations.” Another juror was excused when she told the judge of a radio broadcast she heard that morning that “mentioned that he has priors.”
The defendant explicitly references juror 12-5 in his brief.
For example, the judge included a juror who replied, “I think. I’ve never done this before so it’s hard”; excluded a juror who replied, “I’m not sure”; included a juror who replied, “I think I could”; excluded a juror who replied, “I don’t think so”; included a juror who replied, “I suppose so”; and excluded
The judge: “Do you know anything about the facts of this case?”
The juror: “No, just television.”
The judge: “What do you know about the case from watching television?”
The juror: “I thought he was caught. While he did the crime, I thought he was caught.”
The judge: “Do you know anything about the defendant’s background?”
The juror: “No, oh, just that he worked at the store.”
The judge: “Okay. Thank you. I’ll ask you to remain.”
Leahy did not individually challenge juror 12-5 for cause, request that the judge make further inquiry of the juror, or use one of his peremptory challenges to remove the juror, even though he had them to use when juror 12-5 was seated.
While Leahy’s brief states that the juror’s response was, “I think so,” the transcript shows that the actual response was, “I think I could.” The judge had no problem excusing a juror who had responded, “I don’t think so.”
In his brief, Leahy argues for the first time that we should consider juror impartiality as to the identity of the killer. He contends that had a jury without any media exposure been empanelled, he could have defended the case on the basis that it was the State police lieutenant, who burst in and arrested him next to the body of the victim while in possession of the murder weapon and her wallet, and not he, who committed the murder. We reject this argument. Leaving aside the problem of this contention in light of Leahy’s confession, if Leahy wished to argue identity, he was free to do so. He did not.