COMMONWEALTH vs. JEROME McNULTY.
Supreme Judicial Court of Massachusetts
November 18, 2010
458 Mass. 305 (2010)
Essex. May 7, 2010. — November 18, 2010.
Present: MARSHALL, C.J., COWIN, CORDY, BOTSFORD, & GANTS, JJ.
This court concluded that where police did not convey adequately to a criminal defendant, who was in custody, the substance of his attorney‘s telephone message (i.e., that the attorney wanted to speak with the defendant, and that the attorney would arrive shortly at the police station where the defendant was being held) and advice (i.e., that the defendant should not talk to the police), the defendant‘s subsequent indication that he would continue to speak to the police did not constitute a knowing or intelligent waiver of his Miranda rights, and as a result, evidence of his statements and his actions in connection with the police interrogation that were made after his attorney tried to contact him should have been suppressed. [314-318] Cordy, J., concurring. Gants, J., dissenting.
Where the police, in violation of a criminal defendant‘s right to counsel under
Discussion of issues that might arise at the retrial of an indictment charging murder in the first degree. [327-330]
INDICTMENTS found and returned in the Superior Court Department on April 18, 2001.
Sharon Fray-Witzer for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
BOTSFORD, J. The defendant, Jerome McNulty, appeals from his conviction of murder in the first degree,
1. Procedural background. Before trial, the defendant moved to suppress the statement he made to the police during a custodial interrogation following his arrest, claiming violations of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and
2. Factual background. a. Death of Linda Correia and injuries to AlexSandra Correia and Heather Colahan. We summarize facts that the jury could have found at trial, leaving recitation of other facts for discussion in connection with the issues raised on appeal. On March 28, 2001, Linda Correia was one of the defendant‘s girl friends. She lived in a second-floor apartment in Salem with her two children, AlexSandra, aged ten, and Edward, aged eight; her sister, Maureen; Maureen‘s children, Tatiana, aged six, and Adriana, aged four; and Maureen‘s friend, Heather Colahan.2 The defendant lived in Lynn with Lisa Bowen, his “baby‘s mother,” but frequently stayed overnight in Linda‘s bedroom.
On the night of March 28, after Maureen left for her 11 P.M. to 7 A.M. work shift, present in the apartment were Colahan; Colahan‘s boy friend, Georgie Sanchez; Maureen‘s boy friend, Gustavo “Black” Reyes; three of the children, AlexSandra, Tatiana, and Adriana (Edward was not present); Linda; and the defendant. The latter two were in Linda‘s room “bagging” marijuana and cocaine. At 5:30 A.M. the next morning, March 29, Maureen telephoned to wake Sanchez and Reyes, who were starting new jobs with a temporary employment agency, and both men left the apartment at about 5:45 A.M.
Shortly before 7 A.M., Colahan woke to the sound of “banging” coming from Linda‘s bedroom. When the noise became louder, she banged on Linda‘s door, and heard Linda faintly scream and cry, “Help me. He‘s trying to kill me.” Colahan was unable to open the locked door. The noise also woke AlexSandra. She retrieved a butter knife and tried to open the lock with it (something she had previously done), but was unsuccessful. Colahan continued to bang on Linda‘s bedroom door and screamed, “Open the door. Do you want me to call the police? Let me in.”
At that point, the defendant unlocked the door, and came out
Both before and after the defendant left Linda‘s room, AlexSandra heard her mother crying and calling for help. Holding her cousin Tatiana (Adriana remained asleep), she looked into the bedroom and saw her mother‘s foot on the floor. After the defendant left the apartment through the back door, located in the kitchen, AlexSandra shut the back door, inserting knives into it to keep it closed. She then went into her mother‘s bedroom, finding her lying on her back. There was blood on her body and on the carpet. Linda was conscious, and again asked for help. AlexSandra stayed for a few seconds, then went to the kitchen and took the telephone from Tatiana, who had just dialed 911.4 When emergency personnel arrived, Linda was still conscious.
The responding police officers found a “flip knife” and two other knives in the bedroom; two knives outside Linda‘s bedroom; and a knife just outside the apartment, on the threshold of the front door. Other knives also were found on the kitchen floor, or had been used to wedge the kitchen door shut.
After leaving the apartment, the defendant, covered with blood, walked down the street and entered the premises of the temporary employment agency through which Sanchez and Reyes had just begun employment. He told the manager that he had just been mugged, and wanted a taxicab. Instead of sitting down, however, the defendant lay on the floor, below the level of the windows. The manager became suspicious, and told the defendant to wait outside. When he heard sirens, the defendant pulled up his hood and walked away from Linda‘s apartment. The manager alerted a police officer in a cruiser, and the defendant was apprehended soon thereafter.
Linda was taken to a hospital. She underwent surgery in an
b. The defendant‘s custodial statement.5 Following the defendant‘s arrest shortly after 7 A.M. on March 29, 2001, he was taken to the Salem police station for booking. All his clothing was seized during the booking process, and he was given a blanket to wear. The defendant was read Miranda rights within fifteen minutes of arriving at the station, and again around 9 A.M., when he agreed to speak to Sergeant Dennis Marks of the State police and Detective James Page of the Salem police.
During the interview, Marks wrote down the defendant‘s words as he spoke. According to the defendant‘s statement as memorialized by Marks, at about 5:50 A.M. on March 29, the defendant spoke with Sanchez and Reyes in the apartment kitchen, and told them he was going to visit his mother in a hospital. When he returned to Linda‘s bedroom, he lay down on the bed and the two started talking. Linda seemed to be “aggravated mad,” and got progressively louder and angrier. She got up, pulled a black bag or pocketbook from under the bed, and took out a “ball like white package.” The defendant thought it was cocaine, but vigorously declined Linda‘s offer to give him some. Linda snorted the cocaine using a card.
The defendant then left the room, went to the kitchen to get a soda, and returned. When he got back, Linda was “a different person,” and apologized to him. Then, as he sat on the end of the bed and began dressing, she started hitting him, “like a clinging hit,” and then asked him to hold her. At that point, she reached over his shoulder and stabbed the night table beside the bed with a knife “like a butterfly with a dragon on it.” She
When the defendant got up to leave, Linda had another knife, and she “jump[ed] up” and continued to try to wrestle. He heard Colahan knock on the door, and Linda told Colahan to “get out, run, leave, like I was doing something to Linda.” When the defendant opened the door, Colahan had a kitchen knife in her hand, yelling at him to leave. Linda came out of the room swinging a knife, and Colahan was pointing a knife at his chest and face. He “smacked” the knife out of Colahan‘s hand, then saw AlexSandra and Tatiana in the living room and told them to telephone 911. The defendant walked through the kitchen and left through the back door of the apartment to call for help. He went into the temporary employment agency and asked them to call an ambulance. Then, he heard sirens and went outside to look for the police.
After a fifteen-minute break in the custodial interview, the defendant further told the police that he had not smoked marijuana the night before and did not “do” cocaine. He stated he had drunk five or six ounces of rum the previous night, which just made him tired but had no other effect. He denied having had a knife in his hand and denied knowing how the drugs he was carrying when arrested came into his possession, but stated that they were in the same container that Linda had taken from under the mattress in her room.
c. The defendant‘s testimony at trial. The defendant testified at trial. His account of what happened on the night of March 28 into the morning of March 29 was similar to the statement he gave the police, except that he testified that during the night he was using cocaine, smoking marijuana “blunts,” and drinking quite heavily. He also testified that, in reaction to Linda‘s use of knives, he swung wildly, afraid for his life. While he did not remember slashing or stabbing any of the three victims, he agreed that he must have done so.
“[H]e over perceived the threat [from Linda] that may have been there, acted in a manner to extricate himself as best he could and in so doing caused her death. And then in his extrication from the apartment, he was confronted with two individuals who were between him and the exit.”
2. Claimed violation of right to assistance of counsel. a. Additional background. The defendant challenges on appeal the denial of his motion to suppress his statement to Sergeant Marks and Detective Page. In his motion, he claimed that the police had obtained his statement in violation of his right to the assistance of counsel protected by
At approximately 9:12 A.M. on March 29, 2001, the defendant‘s custodial interview with Sergeant Marks and Detective Page began. Before the interview, the defendant again was read Miranda rights, and was asked to acknowledge whether he understood the rights. Marks wrote down the defendant‘s statements as he spoke. The group took a break from approximately 10 A.M. until 10:15 A.M., during which time the defendant was given a soda and a cigarette. The interview resumed at 10:15 A.M.
At 10:27 A.M., Attorney Raymond Buso was appointed by the Committee for Public Counsel Services to represent the defendant and began driving from the South Boston Division of the Boston Municipal Court Department to the Salem police station. According to Buso‘s telephone records, Buso telephoned the Salem police station at 10:31 A.M.,7 and identified himself as the defendant‘s attorney. Officer Patricia Murphy, who answered the telephone, neither confirmed nor denied the defendant‘s presence, even though she had been the booking officer. Murphy transferred Buso‘s call into Detective Sergeant Prosniewski‘s voice mail. Prosniewski was the public information officer for the police department. Buso telephoned the police department a second time at 10:34 A.M., after disconnecting from Prosniewski‘s voice mail, reached Murphy, and explained to her that he needed to speak to a “live body.” Murphy transferred him to Officer Baglioni. Baglioni was acquainted with Buso. Although Baglioni confirmed the defendant was at the station, he told Buso that he needed to speak to Sergeant Griffin, and gave Buso a different telephone number. Over the next four or five minutes, Buso attempted to reach that number. When he eventually got through to Griffin at 10:42 A.M., he identified himself as counsel for the defendant and told Griffin that he wanted to speak with his client. Griffin confirmed that the defendant was at the station, but told Buso that he could not speak to the defendant at that
At approximately 10:45 A.M., Griffin relayed this message to Marks and Page outside the interview room. By this time, the defendant had finished his statement and the officers were reviewing it with him. Marks told the defendant that Buso had been appointed to represent him; that the defendant could stop speaking to the officers and speak to Attorney Buso at that time or could keep speaking to them; and that it was his choice. The defendant stated that he wished to keep speaking to the officers. Marks memorialized what he had conveyed to the defendant about counsel on the piece of paper on which he was writing the defendant‘s statement and, at 10:52 A.M., the defendant acknowledged through his signature “that the statement accurately reflected what he had been told concerning Attorney Buso.” Between 10:52 A.M. and 11 A.M., Marks read the entire statement to the defendant. At approximately 11 A.M., the defendant signed each page of Marks‘s handwritten notes, acknowledging the written words were his statement.
Buso arrived at the Salem police station about 11 A.M. He identified himself as counsel for the defendant, and asked to speak to the defendant “right away.” About three or four minutes later, Griffin met with Buso. Although Buso asked to speak with the defendant, Griffin denied the request, stating that “he had informed [the defendant] that an attorney had called and that he had passed the message on that I asked him to, and that [the defendant] wished to continue talking.” It was not until about twenty minutes after his arrival at the police station that Buso was permitted to speak to the defendant, which was about fifty minutes from the time he had first contacted the Salem police department. The motion judge found that while the police should have been “more aggressive” in responding to Buso‘s inquiries, the police had not been “purposefully dilatory.”
Based on these findings, the motion judge ruled that Sergeant
b. Analysis. In Mavredakis, this court held that under
The duty to inform described in Mavredakis is one that attaches immediately after the attorney communicates to the police that he or she represents a suspect in police custody and seeks to communicate with the suspect in order to provide legal advice. See Mavredakis, 430 Mass. at 852, 861-862 (defendant‘s statements made any time after 10:15 P.M., when defendant‘s first attorney telephoned police station and asked to speak to defendant, should have been suppressed); Commonwealth v. McKenna, 355 Mass. at 324-325. See also Commonwealth v. Vao Sok, 435 Mass. at 751, 753 (“when an attorney identifies himself or herself to the police as counsel acting on a suspect‘s behalf,
That there was a duty to inform the defendant concerning Buso‘s efforts to contact him as of 10:31 A.M. leaves open the question what information the police were required to convey. Both the motion judge and the trial judge, in deciding the defendant‘s motion to suppress and motion for a new trial respectively, concluded that the information conveyed by Marks to the defendant about Buso‘s message satisfied Mavredakis and that the defendant, in stating at some point between 10:45 A.M. and 10:52 A.M. that he would continue to speak with the police after hearing Marks‘s information, validly waived his right to the assistance of counsel. We disagree.
The obligation, defined in Mavredakis, is “to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.” Mavredakis, supra at 861, quoting State v. Stoddard, 206 Conn. 157, 169 (1988). Here, according to the motion judge‘s findings, Buso made four separate points to the Salem police when he ultimately was connected to Sergeant Griffin: (1) he represented the defendant; (2) he wanted to speak to the defendant; (3) the police were to tell the defendant that Buso said not to talk to the police; and (4) Buso would be at the station shortly. In our view, each of Buso‘s four points related directly to the defendant‘s right to counsel, see id., and the police here essentially failed to inform the defendant of three out of the four. In particular, as Mavredakis makes clear, the statements that Buso had expressly requested to speak to the defendant and would be at the station “shortly” — the second and fourth points — could be of critical importance in “actualizing” the abstract promise of an attorney provided by the Miranda warning into concrete reality; there is a significant difference between being told that one can stop questioning and speak to an appointed attorney, and hearing that the appointed attorney has
The third point was also significant — that is, it was critical for the defendant to be told, which he was not, of the specific advice that the identified attorney, Buso, was already giving — namely, that the defendant should not continue to speak to the police. See Commonwealth v. Vao Sok, 435 Mass. at 752-753 (in concluding that defendant was adequately informed of his attorney‘s efforts to render legal assistance, court noted that State police officer informed defendant that defendant‘s attorney had indicated he [attorney] wanted ongoing polygraph examination terminated, that he was seeking to locate defendant on behalf of another attorney already representing defendant on another case, and that he wanted all questioning of defendant to cease). See also Commonwealth v. Anderson, 448 Mass. 548, 552, 556 (2007) (if investigating State police lieutenant had not informed defendant that identified attorney had been appointed to represent him and that attorney had requested defendant not be interviewed, defendant‘s waiver of assistance of counsel would not have been valid under
In sum, we conclude that, because the police did not convey adequately to the defendant the substance of his attorney‘s telephone message and advice, the defendant‘s subsequent indication that he would continue to speak to the police did not constitute a knowing or intelligent waiver of the Miranda rights. See id. As a result, evidence of all “postbreak” statements made and actions taken by the defendant in connection with the police interrogation — that is, all statements and actions from 10:15 A.M. until the conclusion of the interview at 11 A.M., including the defendant‘s signing every page of the statement — should have been suppressed. See Commonwealth v. McKenna, 355 Mass. at 324-325.
Where, as here, the defendant properly objected to the admission of his statement on Mavredakis grounds, and the Mavredakis errors at issue are constitutionally based, the question we now must confront is whether the admission of the postbreak portions of the statement at trial was harmless beyond a reasonable doubt. See Commonwealth v. Vao Sok, supra at 753 (preserved Mavredakis violations subject to analysis under harmless beyond reasonable doubt standard).13 See also Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting Commonwealth v.
(i) Murder conviction. As to the conviction of murder in the first degree, we cannot say the error was harmless beyond a reasonable doubt under this standard.
This court has delineated a number of factors that bear on the determination whether a trial error involving improperly admitted evidence is harmless beyond a reasonable doubt.14 The
factors include “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions.” Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983). See Commonwealth v. Dagraca, 447 Mass. at 553 (adding to Mahdi factors “the importance of the evidence in the prosecution‘s case“).
We begin with the connection between the improper evidence and the premise of the defense. That premise was that while the defendant did in fact kill Linda, in doing so, he did not have the capacity to act with the requisite malice for murder because of his PTSD, and his actions showed he was acting either in lawful self-defense or, at worst, in a manner constituting voluntary manslaughter. The defendant‘s full statement to the police, however, sets out a version of what happened in the early morning hours of March 29 that clearly could be found to conflict with much of the physical evidence in the case relative to Linda, as well as the testimony of all the other witnesses present in and outside the apartment at the time. Moreover, as a result of the conflict, the jury could view the statement as depicting a man who intentionally, and falsely, was seeking to create a picture
It is true that much of the substance of this self-serving depiction was contained in the prebreak portion of the statement about which Sergeant Marks permissibly could have testified. However, by signing his name to each page of Marks‘s notes, the defendant effectively adopted the notes in their entirety as his own written “statement.” This act, which occurred during the postbreak period, had a number of consequences. First, the presence of the defendant‘s signature on each page could be understood to add a considered, deliberative quality to the defendant‘s statement, particularly because the jury could find (based on Marks‘s testimony) that the defendant only signed each page after the break, after he had “chosen” not to speak to his lawyer, and after he had listened to Marks read the entire statement out loud to him and agreed that it was indeed his statement. The impression that this act could have confirmed was that the defendant‘s statement was far from a hasty or pressured response to police interrogation, but was instead a considered, thought-out version of events that the defendant wanted to convey.
Second, because of the presence of the defendant‘s signatures, Marks‘s writing was admitted in evidence as a trial exhibit, and Marks was permitted to read it verbatim to the jury. See Commonwealth v. Pina, 342 Mass. 472, 473 (1961). Without the signatures, neither could have occurred. Rather, the Commonwealth would have been confined to introducing Marks‘s oral testimony about what the defendant had told the police during the prebreak portion of the March 29 interview; the notes themselves would have remained in their untransformed state as simply Marks‘s notes and, as such, inadmissible. See Commonwealth v. Beaulieu, 333 Mass. 640, 649 (1956). Cf. Commonwealth v. Brum, 438 Mass. 103, 114 (2002). Instead, the jurors were provided the complete statement — prebreak, postbreak and the portion indicating the defendant was rejecting the assistance of an attorney — in documentary form. We have recognized “the exceptionally potent quality of a defendant‘s statement or confession,” Commonwealth v. DiGiambattista, 442 Mass. 423, 447 (2004), and also that the “potency can only
Third, the postbreak portions of the written statement, while to some extent cumulative of what the defendant had already said before the break, were far from entirely so. Moreover, some of the differences might well have increased the likelihood that the jury would view the defendant as a liar, a man who would change his story in order to avoid responsibility for his crimes. Thus, the defendant‘s postbreak comments about not smoking marijuana on the night of the incident, not “do[ing]” cocaine, and only feeling “tired” (not intoxicated) from drinking five to six ounces of rum contradicted the defendant‘s own trial testimony, and also conflicted directly with information he had provided to Dr. Joss, one of the two expert witnesses on whom the defendant relied at trial to explain his PTSD and its effect on him.15 And the defendant‘s explicit, categorical statement, made only during the postbreak period, that he “never
To be sure, the improperly admitted evidence at issue did not include a confession or even an inculpatory admission. Contrast Mavredakis, 430 Mass. at 853 (while attorney was waiting in police station, defendant changed from denying to admitting his involvement in shooting); McKenna, 355 Mass. at 318-320 (after defendant‘s attorney had contacted police, defendant admitted participation in crime). However, the defendant‘s proffered theory of defense focused almost entirely on his mental and emotional condition at the time of the critical events. In that context, the improper evidence had a real potential to weaken or even undermine the defendant‘s efforts to present himself as a mentally and emotionally impaired man suffering from PTSD who, at the relevant time, overreacted to a perceived threat to his safety arising from the conduct of Linda (as well as the other two victims), dissociated from what was going on, and was unable to think or act rationally about how to extricate himself from the danger he perceived.
Turning to additional factors listed in our cases as relevant to the harmless error analysis, see Commonwealth v. Dagraca, 447 Mass. at 553; Commonwealth v. Mahdi, 388 Mass. at 696-697, we think it clear that the defendant‘s complete, signed statement was significant to the prosecution. It was the prosecution that introduced the statement, through Marks. The prosecutor called Marks as her final witness, and his reading of the entire statement, followed by the admission of the written document as an exhibit, were the capstones of the Commonwealth‘s case-in-
(ii) Convictions of assault and battery by means of a danger-
document itself as a trial exhibit. For reasons we have discussed previously, we reject that position.
With respect to the postbreak statements themselves, the Commonwealth contends that their admission was harmless beyond a reasonable doubt because they were merely cumulative of what the defendant had already stated before the break; the statements could have and would have been placed before the jury to impeach the defendant‘s trial testimony, see Commonwealth v. Mahnke, 368 Mass. 662, 692-693 (1975), cert. denied, 425 U.S. 959 (1976); and the statements favored the defendant because they supported his self-defense. We also reject these claims. As previously indicated, the postbreak statements were cumulative to some extent, but also provided new, independent, and damaging evidence against the defendant. As for impeachment, any conclusion that the postbreak statements would come in for this purpose is speculative at best, because we cannot know whether the defendant would have chosen to testify if he knew that the admissible evidence of his “statement” would be limited to Sergeant Marks‘s testimony describing the contents solely of the prebreak portion. Finally, with respect to the evidence being favorable to the defendant, we note that the defendant certainly did not need the postbreak portion of his “statement” to argue a theory of self-defense, and we have difficulty discerning how any aspect of the postbreak portion offered anything of benefit to the defense.
Moreover, the primary focus of the entire statement was on the defendant‘s actions relative to Linda; his interactions with AlexSandra and Colahan are referenced relatively briefly, and primarily in the portion of the statement that the defendant gave before 10 A.M. — the substance of which was admissible.17 Indeed, the only postbreak reference in the statement to either Colahan or AlexSandra directly repeats something the defendant had stated prebreak, namely, that he knocked the knife out of Colahan‘s hand. (There is no postbreak mention of AlexSandra.) See Commonwealth v. Perez, 411 Mass. 249, 260 (1991). Given the statement‘s limited references to these victims, we are satisfied that the impact of the defendant‘s signature on the pages of the statement was equally minimal. Furthermore, independent of the statement, the evidence that the defendant cut or slashed AlexSandra and Colahan was overwhelming. See id. at 261. In light of all the circumstances, we are certain that these two convictions were “surely unattributable to the [Mavredakis] error,” Commonwealth v. Vasquez, 456 Mass. at 361, quoting Sullivan
4. Issues that may arise at retrial. a. Voluntariness of defendant‘s statement. In addition to the Mavredakis errors, the defendant claims that the entirety of his statement to the police should have been suppressed, because the Commonwealth could not prove the voluntariness of the statement beyond a reasonable doubt.19 See Commonwealth v. Auclair, 444 Mass. 348, 353 (2005). In particular, he contends that at the time of the police interrogation, he suffered from mental illness and humiliation caused by the fact that his clothes had been taken from him and he was covered only by a blanket; he also contends that “misrepresentation [of facts concerning Linda‘s condition], intoxication, and mental illness” worked to render his statements involuntary.20 After an evidentiary hearing, the motion judge rejected the claim, concluding:
“[I]n the totality of the circumstances, the defendant‘s statements were voluntary as the defendant‘s will was not ‘[o]verborne to the extent that his statement was not the result of a free and voluntary act.’ Commonwealth v. Selby, 420 Mass. 656, 662-663 (1995). In the totality of the circumstances surrounding the questioning of the defendant, the police did not make any promises or other inducements. The defendant did not appear to the police to be tired or under the influence of drugs or alcohol, nor did the defendant appear to be emotionally unstable. The defendant was read his complete Miranda rights twice —
once during booking and again in the interview room before questioning began. Furthermore, the defendant indicated that he understood the Miranda rights by the physical voluntary act of signing the Miranda card indicating that he understood his rights.”21
In reviewing a decision of a motion judge, we accept his findings of fact absent clear error, “and a finding of voluntary waiver is given substantial deference.” Id. The motion judge was entitled to accept the testimony of the police about the defendant‘s appearance and level of sobriety, see Commonwealth v. Anderson, 445 Mass. 195, 204 (2005), citing Commonwealth v. Dunn, 407 Mass. 798, 803-805 (1990), and to give weight to the repeated issuance of Miranda warnings. See Commonwealth v. Auclair, supra at 355. With respect to the claim that the defendant‘s level of emotional upset was too great to permit a finding that his Miranda waiver and statements were voluntary, “emotional upset alone does not render a waiver of Miranda rights or the voluntariness of the statement itself invalid where there is no evidence that the defendant was acting irrationally [during the interrogation].” Id. See Commonwealth v. LeBlanc, 433 Mass. 549, 555 (2001). There was no error in the denial of the defendant‘s motion to suppress on voluntariness grounds.22,23
b. Admission of autopsy photographs. The defendant asserts error in the admission of certain autopsy photographs, claiming they were more prejudicial than they were probative. See Commonwealth v. Richmond, 371 Mass. 563, 565-566 (1976). The photographs in question showed the results of surgery, as well as bruising and swelling from “coagulopathy,” a condition caused when the units of blood the victim received did not clot. While we have said that unduly gruesome autopsy photographs present “special problems,” Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980), a trial judge has discretion to admit them in appropriate cases. Despite showing some surgical alterations, the trial judge could properly conclude that what the photographs showed was relevant to the Commonwealth‘s theory that the defendant acted with extreme atrocity or cruelty.24 See Commonwealth v. Anderson, 445 Mass. at 209; Commonwealth v. Keohane, 444 Mass. 563, 573 (2005).
So ordered.
CORDY, J. (concurring). I agree that the police in this case did not adequately inform the defendant of his attorney‘s efforts to render legal assistance. I also agree with the court‘s careful analysis of why, in the circumstances of this case, the admission of the defendant‘s “postbreak” statements was not harmless. I write separately to express my view that the inadequacy lay in the police not informing the defendant that his attorney had telephoned, wanted to talk to him, and was on his way to the station. This is information necessary to “actualize” the abstract right to counsel within the meaning of
GANTS, J. (dissenting). I agree with the court that, under
Duty to inform. In Mavredakis, supra at 859, we rejected the United States Supreme Court‘s assumption in Moran v. Burbine, 475 U.S. 412 (1986), that “information regarding the immediate availability of an attorney has no bearing on a suspect‘s ability knowingly and intelligently to waive Miranda rights.” We concluded that “there is an important difference between the abstract right to speak with an attorney mentioned in the Miranda warnings, and a concrete opportunity to meet ‘with an identified attorney actually able to provide at least initial assistance and advice.’ ” Mavredakis, supra, quoting State v. Haynes, 288 Or. 59, 72 (1979), cert. denied, 446 U.S. 945 (1980). “Essentially, the duty to inform a suspect of an attorney‘s efforts to render assistance is necessary to actualize the abstract rights listed in Miranda v. Arizona, 384 U.S. 436 (1966).” Mavredakis, supra at 860.
In Vao Sok, supra at 751-752, we clearly informed police what they must do to satisfy the “duty to inform“:
“[W]hen an attorney identifies himself or herself to the
police as counsel acting on a suspect‘s behalf, art. 12 requires the police to stop their questioning and inform the suspect of the attorney‘s availability immediately. . . . If the suspect accepts the attorney‘s offer of assistance, the police must suspend questioning until the suspect consults with the attorney. . . . We acknowledged in Mavredakis, however, that a suspect may choose to decline the attorney‘s offer. . . . To this extent, an attorney‘s directive to the police to stop questioning the defendant requires only that they terminate questioning long enough to afford the defendant the opportunity to avail himself of the attorney‘s advice.” (Citations omitted.)
The police here complied with that guidance. They stopped their questioning of the defendant and informed him that Buso had been appointed to represent him, and that he may stop talking to the police and speak to his attorney “at this time,” or continue to speak with the police. The court concludes that the police “essentially failed” to inform the defendant that Buso “wanted to speak” to him and that the attorney “would be at the station shortly.” Ante at 316. The police, however, owe no obligation to tell a suspect that his attorney “wants” to speak with him; they are required merely to inform him that his attorney is available to speak with him. See Vao Sok, supra at 751-752. Nor can the police be faulted for failing to tell the defendant that his attorney “would be at the station shortly” where they told him that he could speak to his attorney “at this time,” which suggested that the attorney was available immediately to speak with him.1
The court also concludes that the police “essentially failed” to inform the defendant “of the specific advice that the identified attorney, Buso, was already giving, namely, that the defendant should not continue to speak to the police.” Ante at 316-317.
The court finds support in three cases for adding a duty to communicate the attorney‘s legal advice to the “duty to inform,” but none actually provides such support. First, the court quotes the language in Mavredakis that “the duty [the court] announce[s] concerns solely the obligation ‘to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.’ ” Mavredakis, supra at 861, quoting State v. Stoddard, 206 Conn. 157, 169 (1988). But this assertion in Mavredakis did not mean that the police had an obligation to pass on the legal advice the suspect‘s attorney wished to convey; the specific communication from the two attorneys in Mavredakis asked simply to speak with the defendant. Mavredakis, supra at 852-853.2 Moreover, this assertion in Mavredakis came in response to the Commonwealth‘s argument that the “duty to inform” “would create administrative difficulties“; it was intended to emphasize the limited nature of the duty, and to clarify that the court did not “mean that the police have a duty to provide information such as the ‘nature and quality of the evidence’ that the investigation has amassed against the suspect.”3 Id. at 860-861, quoting Oregon v. Elstad, 470 U.S. 298, 317 (1985).
Second, the court cites Vao Sok, supra at 752, where, in finding the defendant‘s waiver of his right to counsel to be valid,
Third, the court cites Commonwealth v. Anderson, 448 Mass. 548 (2007), where the police told the defendant before commencing the interrogation that Attorney Bruce Ferg was going to represent him on an indictment for murder and that the attorney wished he not speak to anyone. Id. at 552. We concluded that the defendant‘s waiver of his right to consult with counsel and to have counsel present before speaking to the police was intentional, knowing, and voluntary, but added that the waiver might not have been knowing and intelligent under
Three circumstances in Anderson are not commonly found in cases that raise the so-called Mavredakis issue: the defendant initiated the interview; the defendant was already under indictment for the crime about which he was questioned; and the defendant was serving a State prison sentence in Maine, where the interview occurred. Commonwealth v. Anderson, supra at 552-553, 555. In addition, Ferg had not been told that the police were going to visit the defendant at the Maine prison, id. at 552,
The duty to inform was meant to be a straightforward “bright-line rule,” Mavredakis, supra at 860, requiring only that the police inform a suspect of an attorney‘s availability, but its bright line will be dulled if it includes a duty to inform a suspect of the attorney‘s legal advice. Once the court opens that door, it cannot be assured that the legal advice an attorney will ask to be forwarded will always be as simple as “don‘t speak to the police.” It potentially could include advice as to what the client should do or say if he intended to disregard the attorney‘s advice to remain silent, or what subjects the client should not discuss. Do the police owe a duty to inform a suspect of all legal advice provided by the attorney? What if the police incorrectly relayed some of that legal advice? The court has not before needed to address these questions because of the limited scope of the duty to inform; the court will soon need to now that it has expanded that scope to include a duty to communicate legal advice.
The court ably characterizes my fears regarding the new requirement that the police inform a suspect of the legal advice that the attorney has asked to be conveyed — the court “will entangle the police and the courts in difficult, and pointless, debates about which specific pieces of advice need to be passed on, and were they passed on correctly” — but concludes that my fears are “misplaced” because the only legal advice that must be conveyed is advice that “essentially embod[ies] the rights already incorporated into the Miranda warnings themselves: the right to remain silent; the right to the assistance of counsel during any custodial interrogation; and the right to stop questioning at any time.” Ante at 318 n.12. This supposed limitation does not assuage my fears where the court provides no guidance to the police (or a judge
Nor is there any logical reason to expand the scope of the duty to inform to include the communication of legal advice. If a suspect wishes to hear the attorney‘s legal advice before continuing with the interrogation, he may simply ask to do so. Where he knowingly and voluntarily chooses not to hear it, why would
Harmless error analysis. The court concludes that, “because the police did not convey adequately to the defendant the substance of his attorney‘s telephone message and advice, the defendant‘s subsequent indication that he would continue to speak to the police did not constitute a knowing or intelligent waiver of the Miranda rights.” Ante at 318. Therefore, the court concludes that all the statements the defendant made after the break at 10:15 A.M., including the statements made after the waiver of his right to counsel, were admitted in error. Because I conclude that the police belatedly complied with the duty to inform, I believe that the defendant‘s waiver was knowing and intelligent, and that the only statements admitted in error were those made after the break at 10:15 A.M. and before his waiver of counsel at 10:52 A.M. This disagreement is critical to the harmless error analysis because the court‘s conclusion that the admission of the defendant‘s statements made after the break at 10:15 A.M. was not harmless beyond a reasonable doubt rests heavily on the defendant‘s “postbreak” adoption of the statements he made before the break by signing his name to each page of Sergeant Marks‘s notes. If I am correct, the defendant‘s adoption of his earlier statements was properly admitted, and the harmless error analysis should focus on those few statements the defendant made after the break and before his waiver of the opportunity to speak with attorney Buso. With that narrower focus, I agree with the trial judge that the erroneous admission of that evidence was harmless beyond a reasonable doubt.
Between the break and the waiver of his opportunity to speak with attorney Buso, the defendant made eight statements that
- The defendant did not smoke marijuana that night.
- The defendant does not “do cocaine” but does smoke marijuana.
- At 2:30 or 3 A.M., he had five to six ounces of rum but it had no effect on him other than to make him tired.
The final five concerned the defendant‘s memory of what happened that night:
- He never had a knife in his hand on the night of the killing.
- He touched a knife only when he tried to grab the knife out of the homicide victim‘s hand when she was on top of him.
- He smacked a knife out of Heather Colahan‘s hand.
- The homicide victim tried to hit the defendant with her other hand and even tried to bite him a couple of times.
- He had no idea how he got the drugs that were found on him, which were in the same pouch that the homicide victim had taken from under the mattress.
As to his memory of the events that night, statement 4 could be inferred from what the defendant told the police before the break, but was stated more clearly after the break. In his testimony at trial, however, the defendant specifically said that he did not remember holding the knife, so the jury heard this information from him directly.4 The fifth, sixth, and seventh statements were cumulative of what the defendant told the police before the break.
The eighth statement had not been made to the police before
As to the defendant‘s drug use, this information was not elicited prior to the break and contradicted his testimony at trial, where he testified that he had used cocaine and marijuana that evening. However, the postbreak statements matched what he initially told Dr. Robert Joss, the defense expert who opined that the defendant suffered from posttraumatic stress disorder on the morning of the homicide. On cross-examination at trial, Dr. Joss testified that the defendant initially told him he had not used marijuana or cocaine before his arrest, but later admitted to smoking five or six “blunts” that night and trying “lines” of cocaine.5 Consequently, even without the admission of the post-break statements, the jury would have learned from Dr. Joss that the defendant had contradicted himself as to his prior drug use.6
In assessing whether the admission of these statements was harmless error beyond a reasonable doubt, we ask “whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury‘s verdicts.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). Because the erroneously admitted statements made by the defendant between the break and the waiver of his opportunity to speak with Buso were cumulative either of statements made
For these reasons, I respectfully dissent.
Notes
“10:15 resume
“I do smoke marijuana, but I didn‘t have any last night. I don‘t do cocaine. I had [around] 5-6 ounces of Capt. Morgan [rum] last night [at around] 2:30 or 3:00. [I]t had no effect on me, except it made me tired.
“I never had a knife in my hand the whole time. The only time I
touched a knife was when I was trying to get the knife out of Linda‘s hand. I only touched [Colahan‘s] knife when I smacked it out of her hand. “In the bedroom when Linda was on top of me [and] I was trying to grab the knife away from her we both had our hands on the knife. She‘s trying to hit me with her other hand [and] even tried to bite me a couple of times.
“The drugs that was found on me. I don‘t have any idea how I got them. They were in the same exact pouch that Linda had taken from under the mattress.
“[signed: Jerome McNulty]
“10:45. advised that [Attorney] Buso has been appointed to represent him. Advised that he may stop talking to us and speak to [Attorney] Buso at this time or may continue to talk to us. It is his choice. Jerome chooses to continue to talk to this officer and Officer Page.
“[signed: Jerome McNulty] 10:52 A.M.
“[initialed: JP; DM].”
“Once in the interview room, Sergeant Marks read the defendant his Miranda rights. The defendant was not in handcuffs and his chair was closest to the door. After each right was read to the defendant, he was asked if he understood that particular right. The defendant indicated after each of the Miranda rights was read that he understood and Sergeant Marks wrote the word ‘yes’ after each right on the Miranda card after the defendant indicated he understood that particular right. The defendant then signed the Miranda card indicating he understood his rights. . . .
“As the defendant sat in the interview room, Sergeant Marks observed that the defendant seemed scared and upset and he had a cut on one hand. The defendant‘s mood would change. He was not emotional throughout the interview and at times he even appeared calm. Sergeant Marks observed that the defendant did not appear to be tired or under the influence of drugs or alcohol. Marks knew, however, that the defendant stated that he had consumed some alcohol earlier. Detective Page offered the defendant a cigarette and a soda which the defendant accepted. Sergeant Marks took out a pad of paper and the interview began.”