430 Mass. 66 | Mass. | 1999
The defendant, Sebastian R. Pina, Jr., appeals from his conviction of murder in the first degree on a theory of extreme atrocity or cruelty.
1. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. Responding to an emergency call at approximately 4:20 p.m. on January 30, 1995, police and rescue personnel went to the apartment of the victim, Deborah McGinnis, in Hyannis. She had suffered multiple stab wounds and was unconscious. Shortly afterward she was pronounced dead at a nearby hospital. When the police first arrived at the victim’s apartment, her boy friend, Milton Green, was present.
At approximately 4:15 p.m. the same afternoon, the defendant arrived at the home of a friend, Agnes Walker Stefanski, and told her that he had just stabbed the victim six times.
2. Motion to suppress. According to the testimony of the three police officers who interrogated the defendant following his arrest, the defendant gave three versions of the day’s events during the approximately one and one-half hour interrogation. He first denied being with Green or the victim that day. When told that the police knew that he had been at the victim’s apartment, he described a visit there, but said nothing of the stabbing. He said that he had spent several hours at the apartment, that all three had been drinking, and that Green and the victim had a heated argument. The police then confronted the defendant with Stefanski’s statement, at which time he confessed to having stabbed the victim “[f]our to six times.” The defendant later identified the murder weapon from an array of three knives taken from the victim’s apartment. One interrogating officer testified that the following morning, the defendant told him that
The defendant challenges the admission of his statement on several grounds. The police did not electronically record their interrogation of him. The defendant neither wrote out his statement nor signed a copy prepared for him, nor did he otherwise acknowledge making the statement. The police did not administer any sobriety testing despite, he claims, having reason to believe he was heavily intoxicated. The officer who took notes during the interrogation later destroyed his notes. For these reasons, separately and collectively, the defendant claims the Commonwealth failed to establish the reliability of the statement or, if made, whether the statement was voluntary. We have declined to date to require that the police electronically record a suspect’s statement. See Commonwealth v. Ardon, 428 Mass. 496, 498 (1998), citing Commonwealth v. Diaz, 422 Mass. 269, 273 (1996).
The defendant argues that his case presents compelling reasons for revisiting that question and for concluding that in the unique circumstances here, his “purported” statement must be suppressed. It was, he claims, the word of the police officers against his own whether he even made the statement attributed to him. In Commonwealth v. Diaz, supra, there was no electronic recording of the defendant’s custodial interrogation but, we noted, id. at 270, the defendant gave a signed statement to the police, which was read to the jury and admitted in evidence. Here, in contrast, the defendant’s statement was not reduced to writing, by himself or by the police, for him to sign. The defendant points to other circumstances that make his case different. One of the three interrogating police officers testified that he took notes during the interrogation and that he destroyed his notes following the preparation of the police report.
The judge correctly concluded that he was not required to suppress the statement because there was neither an electronic recording nor a written memorial signed by the defendant. See Commonwealth v. Rankins, 429 Mass. 470, 472 n.2 (1999).
The defendant separately claims that the Commonwealth did
“While police officers should be sensitive to a defendant’s state of intoxication, Commonwealth v. Hosey, 368 Mass. 571, 577 (1975), they are ordinarily ‘entitled to rely on a suspect’s outward behavior and assurances of sobriety’ when deciding whether to proceed with an interrogation. Commonwealth v. Parham, 390 Mass. 833, 839 (1984).” Commonwealth v. Lanoue, 392 Mass. 583, 589 (1984). There was no testimony that the defendant gave the officers any “assurances of sobriety,” id., but all three officers testified that, despite recognizing indications that the defendant had consumed alcohol, they believed, based on his outward conduct, his responses to their questions, and their prior experiences with him, that he was not intoxicated. Each had an opportunity to observe him over several hours, including as he walked without assistance about the station house.
The defendant’s sobriety may bear on the determination of the voluntariness of his waivers and of his statements, and the weight that should be afforded them, as may the absence of an electronic recording. See Commonwealth v. Diaz, supra at 273. The defendant argued these points to the motion judge and later to the jury. Id. He also had, and made use of, the opportunity to cross-examine the officers who testified concerning the contents of his statement. The motion judge noted the absence of a recording in his findings regarding the voluntariness of the statement.
3. Individual voir dire. The victim was white, of Portuguese descent; the defendant is Cape Verdean. Prior to jury selection, the defendant requested that each prospective juror be asked individually whether he or she harbored any bias against Cape Verdeans.
Relying here for the first time on encyclopedic definitions of “Cape Verdean,”
The recognition of pervasive racial bias in our society has led us to conclude that in murder trials involving a defendant and a victim of different races,
It is in the sound discretion of trial judges to determine on a case-by-case basis whether an individual voir dire is required. See Commonwealth v. Hunter, supra at 654; Commonwealth v. De La Cruz, supra at 272. See also G. L. c. 234, § 28. We shall reverse a judge’s failure to question jurors individually upon request only “when a ‘substantial risk’ of bias has been shown.” Commonwealth v. Hunter, supra, quoting Commonwealth v. De La Cruz, supra at 274. That some members of the Cape Cod community might, in the abstract, consider Cape Verdeans “black” does not, without more, suggest any such substantial risk. See Hunter, supra at 654 (fact that some members of the venire described victim, native of the Philippines, as “Asian” did not entitle white defendant to individual voir dire on racial prejudice). The Commonwealth did not argue that the defendant’s status as a Cape Verdean was relevant in any respect to this murder. No ethnic (or indeed racial) factors were suggested as a possible motive for the killing, or otherwise informed the evidence. The defendant was a friend of the victim. He was not identified as a suspect because he is Cape Verdean. We are satisfied that the judge, cognizant of the risk of focusing the attention of the jury on the defendant’s national origin, Com-, monwealth v. Lumley, 367 Mass. 213, 216-217 (1975), considered the issue and determined that no substantial risk of bias arose due to any difference between the defendant and the victim. There was no error.
4. The impeachment of a hearsay declarant with a prior inconsistent hearsay statement. The defendant’s strategy at trial was to suggest to the jury that Milton Green, the victim’s boy friend who was present at the scene of the crime when the
Green’s hearsay statement to Pires was properly admitted for its truth under the exception for statements against penal interest. See Commonwealth v. Drew, 397 Mass. 65, 73-76 (1986). Although Pires was the witness before the jury, her testimony “effectively allowed the [defendant], through the testimony of [Pires], to place [Green] on the stand to testify.” Commonwealth v. Sellon, 380 Mass. 220, 224 n.6 (1980). Green’s statement to Jason, as testified to by Jason, was admitted to impeach Green’s statement to Pires; it was not offered for the truth that “Junior” (the defendant) had killed the victim. See Commonwealth v. Donnelly, 33 Mass. App. Ct. 189, 197 (1992) (“[w]hen used for impeachment purposes, prior inconsistent statements are not offered for the truth of the matter therein asserted . . .”).
Under Rule 806 of the Proposed Massachusetts Rules of Evidence, identical to Rule 806 of the Federal Rules of Evidence, the credibility of the declarant of a hearsay statement may be impeached by any evidence that would have been admissible if the declarant had testified, even if the declarant has no opportunity to deny or explain any inconsistent statement or behavior.
Green’s statement to Jason would have been admissible for impeachment purposes had Green himself testified. “It is a well-settled rule of evidence that if a witness makes a statement relevant to an issue on trial, the adverse party has the right to ‘show that the witness has made previous inconsistent or conflicting statements ... by proving them by other witnesses.’ ” Commonwealth v. Simmonds, 386 Mass. 234, 242 (1982), quoting Commonwealth v. West, 312 Mass. 438, 440 (1942), and cases cited. Testimony reporting a hearsay statement “tend[ing] to contradict [the declarant’s] testimony . . . [is] admissible.” Commonwealth v. Cataldo, 326 Mass. 373, 377 (1950). See Commonwealth v. Simmonds, supra.
The defendant also attacks the admission of Jason’s testimony because of the unreliable nature of the impeaching statement as one “in which the speaker pushes blame away from himself and thrusts it on another.” Commonwealth v. White, 370 Mass.
5. The exclusion of evidence of domestic abuse of the victim by Green, As we explained earlier, the defense strategy was to persuade the jury that Green, and not the defendant, murdered the victim. The judge excluded certain evidence that the defendant claimed would establish that Green previously had been violent toward the victim, and had threatened to kill her. The judge excluded evidence of two such incidents because they were separated in both time and nature from the murder of the victim.
The trial tactic of introducing evidence to suggest that someone else committed the crimes charged “is, like any other, limited by the fundamental principle that evidence must be relevant.” Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). The defendant’s evidence “must have a rational tendency to prove the issue the defense raises, and the evidence cannot be
6. Jury instructions, (a) After the clerk had read the indictments to the jury, the defendant requested a preliminary instruction to the effect that an indictment was merely the vehicle by which the defendant was brought into court, that it was not evidence against him, and that the defendant was presumed innocent until proved guilty. The judge declined to give these instructions at that time, but did so in his final charge. The defendant claims that this failure nullified the presumption of innocence. There was no error.
The judge, during the jury selection phase, twice instructed the venire that the defendant was presumed innocent and that the Commonwealth had the burden of proving each of the crimes charged beyond a reasonable doubt. In his final instructions before the jury deliberated, the judge again emphasized the presumption of innocence and the Commonwealth’s burden of proof.
In Commonwealth v. Boyd, 367 Mass. 169, 188 (1975), we said that the “function [of an instruction regarding the presumption of innocence] is to emphasize to the jury that ‘the finding of an indictment by the grand jury . . . [is] not to be regarded as ... [a circumstance] tending to criminate the defendant or creating against him unfavorable impressions, and that he is not to be found guilty upon suspicion or conjecture but only upon evidence produced in court.’ Commonwealth v. DeFrancesco, 248 Mass. 9, 13 (1924).” The charge more than adequately informed the jury of the presumption of the defendant’s innocence.
(b) In the portion of the judge’s charge concerning the jury’s determination of the voluntariness of the defendant’s waiver and statement to the police, the judge instructed that the jury could consider the absence of an electronic recording as a factor in their decision. The defendant requested a similar instruction,
7. Sufficiency of the evidence. The defendant moved for a required finding of not guilty at the close of the Commonwealth’s case, which the judge denied. He argues that the evidence was insufficient to prove (a) that he was the person who stabbed the victim, and (b) that the killing was accomplished with extreme atrocity or cruelty.
The defendant’s statement to Agnes Stefanski and his subsequent confessions to police, if believed, provided sufficient evidence to warrant a finding beyond a reasonable doubt that he was the person who stabbed the victim. The defendant argues that “there was nothing extreme, atrocious, or cruel about this homicide in comparison to others,” that there was “no evidence from which the jury could derive a standard of cruelty or atrocity which could fairly be termed ‘ordinary,’ ” and that therefore the Commonwealth did not meet its burden of proving that the victim was murdered with extreme atrocity or cruelty.
8. Pursuant to our duties under G. L. c. 278, § 33E, we have reviewed the entire record. In seeking relief under that statute, the defendant asks us to consider the evidence that he (and Green and the victim) had consumed substantial amounts of alcohol on the day of the killing. He characterizes the death of the victim as the “tragedy of a minor controversy exploding into the killing of a human being.” See Commonwealth v. Ke-ough, 385 Mass. 314, 320 (1982). He observes that he and the victim had no previous hostility between them and that the “entire incident was characterized by senseless conduct by all present.” These are matters that were considered by the jury, who received the evidence under appropriate legal rulings free of error. “Regard for the public interest impels us to use with restraint our power under § 33E to modify the jury’s verdict.” Commonwealth v. Garabedian, 399 Mass. 304, 316 (1987), quoting Commonwealths. Williams, 364Mass. 145, 151 (1973). We find nothing that would compel us to exercise our discretion to disturb the jury’s verdict, either to reduce the verdict or to grant a new trial.
Judgment affirmed.
The jury were instructed on murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. A conviction of assault and battery by means of a dangerous weapon was recorded and filed with the defendant’s consent. G. L. c. 265, § 15A. See Commonwealth v. Ford, 424 Mass. 709, 713 n.2 (1997), and cases cited.
The defendant’s main brief on appeal was filed by his trial counsel, who has since been appointed a judge of the Superior Court. A short supplemental brief and a reply brief were filed by substitute, counsel.
The defendant introduced evidence tending to establish that on prior occasions Green had physically assaulted the victim.
Stefanski was a friend of both Green and the defendant. She testified that the defendant arrived at her home, sat for a few minutes, and then told her that he had stabbed the victim. She telephoned the victim’s home and had a conversation with Green. The defendant left her home approximately five minutes later. Later she spoke with another friend, who in turn telephoned the police.
Defense counsel established that at the earlier trial of the defendant, which resulted in a mistrial due to a hung jury, the officer had not testified that the defendant told him that he felt better because he “told the truth,” but had testified that the defendant merely told him that he was “fine” and had “slept well.”
Only Detective James Tamash took notes during the interview of the defendant. He and the other two interrogating officers met several days later, pooled their recollections, and prepared a joint description of what had transpired. One officer testified that, when the report was prepared, they could not agree on the order of events during the interrogation. Officer Tamash
Before the defendant was arrested, an officer had interviewed Agnes Stefanski and, apparently, had taken detailed notes during that interview. During the interrogation of the defendant, the officer confronted him with her statement, reading from his notes “line by line.” At some later time, the officer inexplicably destroyed his notes of his interview with Stefanski.
For the reasons we described in Commonwealth v. Ardon, 428 Mass. 496, 498-499 (1998), we again “decline to go beyond our prior pronouncements” and shall not exclude as a matter of law a defendant’s statement to interrogating police officers because it was not recorded. For much the same reasons, we decline to require that evidence of a defendant’s statement to the police be excluded unless the statement is reduced to writing and signed by him.
Officer Delaney was called by the Commonwealth at the first trial. At the second trial, he did not testify on behalf of the Commonwealth, but was called as a witness by the defendant. At the second trial defense counsel elicited testimony that could have been viewed by the jury as inconsistent with his testimony at the first trial.
The defendant does argue that he was so intoxicated at the time of his arrest that whatever he said was unreliable, see discussion, infra, and that he
Ruling on the motion to suppress, the judge found:
*72 “The Barnstable and State Police had available to them videotape equipment, tape recorders and pencil and paper. Despite the availability of these electronic aids and other paraphernalia, no attempt was made to memorialize the defendant’s statements. Detective Tamash’s notes relative to the interrogation were destroyed after their content was incorporated into the formal police report. In addition, even though the defendant was known to the police as a drinker, had an odor of alcohol according to some witnesses, bloodshot eyes according to others and had been in possession of beer and vodka there was no attempt to ascertain his sobriety by a field sobriety test, breathalyser, or blood sample. On the present state of the law, there is no basis for the suppression of the defendant’s statements either for failure to memorialize those statements or for failure to conduct sobriety tests. These facts, once established, may present a valid basis for argument to the jury relative to the weight to be given to the defendant’s alleged confession. . . .”
The defendant claims that the motion judge failed to consider the absence of a recording and of sobriety testing as factors in his determination that the Commonwealth had proved a valid waiver of rights and the voluntariness of his statements. The judge’s memorandum of decision does not bear this out. Rather, the judge declined to accept the defendant’s argument that a recording, statement signed by the defendant, and a sobriety test are each required as a matter of law.
The defendant requested that the judge ask the following questions of each juror: “[The defendant] is Cape Verdean. The woman who died is White. Would the fact that [the defendant] is Cape Verdean in any way interfere with your ability to render an impartial verdict?” and, “Do you have any prejudice or [bias] when it comes to people of Cape Verdean descent?”
In offering to question the jury as a panel, the judge explained that the questions would “draw[] attention to something that would never occur to 99 percent of the people here in Barnstable County who come in for jury service,” and that if the questions were not asked, “it would never occur to [the jurors] that your client was any different than any other citizen on Cape Cod. . . . The Court strongly suggests that the fact that [the defendant] is a Cape Verdean should not even be mentioned. However, the Defendant has a right to ask the Court to ask these questions, and I will.”
The defendant relies on 29 Encyclopedia Britannica 834 (15th ed. 1993), which states that two-thirds of the population of Cape Verde is of mixed European and African descent, and the “remainder” is of either European or African descent, and on 5 Encyclopedia Americana 590 (Int’l ed. 1994) for the same proposition. These were not part of his proffer to the trial judge.
In Commonwealth v. De La Cruz, 405 Mass. 269, 272 (1989), we explained that the term “race” reflects the historical division of humanity by physical characteristics into three primary divisions: Caucasian, Mongolian, & Negro. We use for these purposes a biological, rather than cultural, definition of race. See Webster’s II, at 968 (1984) (race defined as a “population that differs from others of the same species in the frequency of hereditary traits”).
Pires testified that Green “said that there was something he wanted to speak to me about. . . that [the defendant] wasn’t the one who murdered [the victim]. He had came [sz'c] forward and told me that he was the one, and he didn’t know how to come about coming to court to tell the court that it was him.”
“Junior” was the defendant’s nickname. Jason testified that when she arrived at the crime scene, Green was standing at the door. She asked him what had happened, and he responded, “My lady’s dead or almost dead.” She asked again what had happened. He then said, “Junior did this.”
Rule 806 of the Proposed Massachusetts Rules of Evidence, identical to Rule 806 of the Federal Rules of Evidence, states in relevant part:
*76 “When a hearsay statement . . . has been admitted in evidence, the credibility of the declarant may be attacked ... by any evidence which would be admissible for [that] purpose[] if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain.”
Green’s statement to Jason plainly contradicts Green’s statement to Pires. Because the contradicting statement went to the main issue — whether the defendant or Green killed the victim — it is arguable that the trial judge had no discretion to preclude its use for impeachment purposes. See Commonwealth v. A Juvenile, 361 Mass. 214, 218 (1972) (“extent of cross-examination on collateral issues must be left largely to the discretion of the trial judge, but that rule has no application where alleged contradictory statements of a witness relate to the main issue that is being tried”); Commonwealth v. West, 312 Mass. 438, 440 (1942); Commonwealth v. Donnelly, 33 Mass. App. Ct. 189, 197 (1992). In each of those cases, the witness whose testimony the Commonwealth sought to impeach was on the witness stand. A trial judge shall have the discretion to decline to admit previously inconsistent or conflicting statements to impeach a declarant, where the “declarant” is not testifying before the judge or jury.
In a 1992 incident, the victim told a police officer that Green had threatened to “put her [six feet] under.” The judge excluded that evidence because it was too remote in time to be relevant evidence of Green’s mental state at the time of the murder in 1995. The defendant counters that the statement “was highly relevant for it showed a long held motive on the part of Green” to kill the victim.
In an April, 1994, incident, the police took Green to a hospital in a confused mental state at the request of mental health authorities. He asked a police officer how many people had been killed in his apartment, and whether he, Green, had a gun. There was no evidence to suggest that the victim was involved in this incident in any way.
The evidence concerned an October, 1994, police visit to the apartment the victim and Green shared. The two were engaged in a domestic altercation that led to an assault charge against Green, pending at the time of the victim’s death. The defendant claims the pending charge was evidence of a motive for Green to kill the victim.
The requested instruction stated:
“You have heard evidence that the statement which the defendant allegedly made was not reduced to written form by the defendant or by one of the officers and then signed by the defendant. The failure of the police to secure such a written statement from a defendant should be considered by you in deciding the voluntariness of that statement and whether any statement attributed to the defendant was in fact made.”
The defendant suggests that such proof “would involve statistical evidence comparing a large and fair sample of unlawful killings, perhaps all the killings in some jurisdiction over a number of years. Various charts might assist in comparing the various factors, i.e., number of blows, instrumentalities