424 Mass. 382 | Mass. | 1997
The defendant, John Raymond, was indicted for forcible rape of a child and murder in the first degree. The jury convicted him on both indictments, and the judge sentenced him to two consecutive life terms. He has appealed from his convictions and has made two motions for a new trial, the first of which was denied and the second of which has not yet been heard. We affirm the convictions and find no reason to grant a new trial or reduce the degree of murder under G. L. c. 278, § 33E. We remand to the Superior Court for consideration of those aspects of Raymond’s second motion for a new trial, which have not yet been heard.
I
The body of the fifteen year old victim was discovered floating in the Connecticut River. Her arms were tied behind her back with socks, with another sock tied around her neck and another in her mouth as a gag. The medical examiner reported that her body showed no signs that a struggle had taken place, nor of bruises from strangulation or forced sex,
Raymond Stanislawski, after initially denying involvement in the victim’s death, gave a statement to the police in which he implicated himself and the defendant in the murder of the victim. According to Stanislawski, the defendant and he were drinking and ingesting cocaine during the day of the murder. Raymond drove Stanislawski to the victim’s apartment where they offered to drive her to a store. Instead, the three drove to Jones Point Park in Holyoke where Raymond and Stanislawski continued to drink. They walked to an isolated area known as “High Rock” near the Connecticut River. Raymond suggested that they rape the victim which they both proceeded to do. Then, Raymond, fearful that she would tell the police, decided that they should kill her. They then tied her up with socks and Raymond choked her with a sock tied around her neck. While “[s]he was still kicking a little,” Raymond stopped choking her, and they threw her body into the river.
After hearing Stanislawski’s statement, the police asked Raymond to go voluntarily to the station house for questioning, which he agreed to do. At the station house, Raymond received Miranda warnings, and signed a waiver form. The police brought in Stanislawski. The police read his statement to Raymond, and then Stanislawski said to him: “[T]here’s no use lying [Raymond], it’s all over.” Raymond showed signs of upset, but denied having committed the murder. The police told him that his mother lied to the police on his behalf and that she might therefore be implicated as an accessory after the fact. The officers continued to accuse Raymond as he alternatively denied the charges by shaking his head and lapsing into silence. The officers told Raymond that he should not allow Stanislawski’s story, which placed most of the blame on Raymond, to stand as the only account. After approximately twenty minutes of this questioning, Raymond decided to make a statement. Raymond’s statement was similar to Stanislawski’s in most respects but Raymond indicated that he was so physically impaired by drugs and alcohol that he was unable to rape the victim, and he stated
Raymond was the first to be brought to trial. Stanislawski testified for the Commonwealth. The Commonwealth introduced Stanislawski’s statement to police as well as Raymond’s. In addition, the Commonwealth introduced witnesses who had seen Raymond and Stanislawski with the victim on the night she was killed. The defendant maintained an alibi defense with several members of his family vouching for his whereabouts on the night of the murder. He argued that the confession was coerced, fabricated by the police, and that he had signed it without reading it because he was afraid of the police and wanted to protect his mother. Raymond was found guilty, and Stanislawski later accepted a plea bargain in which he confessed to murder in the second degree.
After being sentenced to two consecutive life sentences, Raymond filed a motion for a new trial complaining about the judge’s instructions on intoxication and the admission of Stanislawski’s written statement, and presenting evidence that Stanislawski had recanted his testimony. Stanislawski refused to testify at the hearing on the motion, invoking his privilege under the Fifth Amendment to the United States Constitution. The judge denied the motion in all respects.
Raymond recently filed a second motion for a new trial based on a letter written to Raymond’s sister which he claims implies that, contrary to Stanislawski’s claims and the Commonwealth’s position at trial, Stanislawski’s testimony was elicited through an offer of a lesser sentence by the Commonwealth. This second motion has not yet been heard by a motion judge. The relevant part of the letter states:
“I thought you knew I was doing a second degree life sentence. Yes I knew I was gonna [sic] get that when I testified.”
II
A
Raymond challenges the judge’s instructions to the jury on two grounds: that they were confusing and in violation of Commonwealth v. Sama, 411 Mass. 293 (1991), and that the judge improperly charged the jury on intoxication. The judge
Raymond first claims that the judge’s instructions were erroneous under our decision in Commonwealth v. Sama, supra. In that case, “[t]he judge repeatedly instructed the jury to consider first whether the defendant was guilty of murder in the second degree under one or more of the three alternative forms of malice, and then decide whether the evidence supported an additional finding of deliberate premeditation or extreme atrocity or cruelty, which would increase the verdict from second to first degree murder.” Id. at 299. We concluded that this approach “did nothing more than invite confusion and error” because “[mjurder in the first degree and murder in the second degree cannot coexist.” Id. at 299-300. We went on to say that it would be better if “[a] jury should be instructed first to decide whether the defendant is guilty of murder and, if so, then to decide whether the defendant is guilty of murder in the first degree. If so, the jury should say so by their verdict. If not, they should find the defendant guilty of murder in the second degree . . . .” Id. at 300.
Raymond did not object to the instructions at trial so we consider them under the substantial likelihood of a miscarriage of justice standard. G. L. c. 278, § 33E. We look to the charge as a whole to determine whether it fairly instructs the jury. Commonwealth v. Blanchette, 409 Mass. 99, 105 (1991). We base our judgment on what a “reasonable juror could have interpreted the instruction” to mean. Commonwealth v. Nieves, 394 Mass. 355, 360 (1985). Although the instructions did not commit the error we identified in Sama, we agree with the defendant that the instructions did not conform to our suggestion in Sama because the judge instructed on mur
The defendant also contends that the instructions on intoxication were in error because the judge did not specifically inform the jury that voluntary intoxication could be considered to reduce the verdict from murder in the first degree to murder in the second degree.
B
After Stanislawski’s direct testimony, the prosecutor introduced Stanislawski’s statement to the police incriminating Raymond. Had Raymond made an objection at trial, Stanislawski’s statement might have been excluded as a prior consistent statement.
C
Raymond asserts several irregularities in the prosecutor’s closing argument to the jury. First, Raymond claims that portions of the prosecutor’s closing argument quoted below were inflammatory and raised facts not in evidence:
“Sit here and think about what happened to [the victim]. Think about her state of mind as she was being raped by Stanislawski and Raymond, made a decision at that time that she was helpless and decided she wasn’t going to fight. . . .
“She was helpless. She couldn’t move. Then, what did they do? Imagine, ladies and gentlemen, what was going through [the victim’s] mind in the dark up at High Rock.”
Raymond claims that the prosecutor improperly vouched for Stanislawski’s credibility. In advocating that the jury should believe Stanislawski, the prosecutor explained that Stanislawski did not allege police intimidation and that, although he lied initially to cover up the murder, he eventually decided to tell the truth. The prosecutor then stated, “He told you the truth when he testified.” Although Raymond’s trial counsel did not object, Raymond argues that this statement violates our rule against the prosecutor’s vouching for the credibility of a witness. Commonwealth v. Thomas, 401 Mass. 109, 115-116 (1987). The statement questioned by Raymond was the culmination of an argument made by the prosecutor that Stanislawski was a credible witness who should be believed. “Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed.” Id. at 116. We think in the context in which the statement was made that the jury would likely have understood this statement not as an assertion of the prosecutor’s personal belief, but rather as a statement of the logical conclusion of the prosecutor’s argument. We acknowledge that the statement is ambiguous, and we discourage the use of such an ambiguous statement in the course of closing arguments. However, “[m]ere[] unfortunate and unartful isolated instances” are generally not enough to lead the
“So, if you . . . take into account the appearance of the witness, the conduct of the witness on the stand, the manner in which a witness testified or any relationship to the parties or the outcome and the interest in the outcome and the inconsistencies in the testimony, you take all those factors into account and any others that you deem relevant and then you determine the weight and credibility you give to a particular witness’s testimony.”
We believe this unambiguous charge to the jury that they must determine credibility on their own mitigated any prejudice that might be derived from the prosecutor’s statement.
Ill
The gravamen of the next set of Raymond’s claims is that his statement to the police was not voluntarily obtained and therefore should be suppressed. His first contention is that the police gave him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), too early, depriving him of an opportunity to make a knowing and intelligent waiver of the rights those warnings explain. He claims that, because the police did not inform him that he was a central suspect or that Stanislawski had confessed before he received the warnings, he had no way of understanding the implications of the waiver, citing the United States Supreme Court’s decision in Moran v. Burbine, 475 U.S. 412, 421 (1986), which requires that “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the con
Raymond next argues that, even if the initial waiver of his
The defendant also maintains that the statement was not made voluntarily and that its admission in evidence violates both the Fifth Amendment to the United States Constitution and art. 12 of our Declaration of Rights. Raymond claims
In reviewing whether a statement was made voluntarily, we accept the judge’s subsidiary findings of fact unless not warranted by the evidence. Commonwealth v. Tavares, 385 Mass. 140, 144-145, cert. denied, 457 U.S. 1137 (1982). The judge’s ultimate findings, while open for review, are afforded “substantial deference.” Id. at 145, quoting Commonwealth v. White, 374 Mass. 132, 138 (1977), aff'd by an equally divided Court, 439 U.S. 280 (1978). The test for voluntariness of a confession is “whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.” Commonwealth v. Selby, 420 Mass. 656, 663 (1995).
IV
A
Raymond appeals from the judge’s sentencing him to consecutive life terms, one for rape and the other for murder in the first degree. “ ‘[W]henever the possibility exists that a jury might have reached a verdict of murder ... on the basis of a felony-murder theory, a consecutive sentence may not be imposed for the underlying felony.’ Commonwealth v. Wilson, 381 Mass. 90, 124 (1980). The appropriate remedy for such duplicative convictions is to vacate both the conviction and the sentence on the lesser included offense, and to affirm the sentence on the more serious offense.” Commonwealth v. Berry, 420 Mass. 95, 113 (1995). In this case, the jury returned a special verdict which specified that Raymond was guilty under all three theories of murder in the first degree, including felony-murder. Had the jury returned a verdict only under the theory of felony-murder or even if the jury returned a general verdict in which it was unclear under which theory it found the defendant guilty, the Berry rule would apply because the felony underlying the felony-murder verdict might
B
In Raymond’s first motion for a new trial, he argued that, on the basis of an unsworn statement purportedly made by Stanislawski recanting his testimony and an affidavit by Raymond denying involvement, he was entitled to a new trial. At the hearing on this motion, Stanislawski refused to testify on the ground that he might expose himself to perjury charges. The motion judge found neither the statement from Stanislawski nor the affidavit from Raymond credible and denied the motion. Raymond filed a notice of appeal, but has not pressed this argument in his brief. We have long held that a new trial is not required based on affidavits or testimony that a key prosecution witness may have been lying, although we have said that such testimony warrants “serious consideration from the motion judge.” Commonwealth v. Watson, 377 Mass. 814, 837-839 (1979). The determination whether such evidence warrants a new trial is left to the sound discretion of the trial judge. Commonwealth v. Waters, 410 Mass. 224, 230 (1991). We conclude that the judge did not abuse his discretion on this record, particularly in light of the fact that the statement by Stanislawski is unsworn and lacking in any other indicia of reliability. See Watson, supra; Commonwealth v. Tobin, 392 Mass. 604, 620 (1984).
C
Raymond has filed a second motion for a new trial based on similar evidence. This time he argues that a letter sent by Stanislawski to Raymond’s sister, who is also Stanislawski’s former girl friend, states that Stanislawski knew he would be able to plea bargain to murder in the second degree when he
Raymond’s second motion for a new trial also claims that the Commonwealth employed improper pressure on Stanislawski by threatening to prosecute him for perjury if he recanted his trial testimony. This argument also has not been addressed before and should be considered on remand.
Raymond’s other two claims, that Stanislawski’s statement was improperly introduced at trial and that the prosecutor improperly vouched for the credibility of Stanislawski, have been addressed in this opinion and need not be reheard below.
D
We have reviewed the record as a whole and have found no reason to exercise our extraordinary powers under G. L. c. 278, § 33E, either to order a new trial or to reduce the verdict to murder in the second degree.
Accordingly, we afiSrm the convictions and the denial of the first motion for a new trial, and remand the case to the Superior Court for consideration of those arguments made in the second motion for a new trial which raise new claims not yet decided in that court.
So ordered.
The body was badly decomposed so that some of this evidence could have been lost.
The trial in this case occurred forty-two months before the Sama decision. While this is not dispositive, it is important to note that the judge did not have the guidance of Sama in giving these instructions.
The defendant’s trial strategy was not to claim intoxication but rather to deny being at the scene at all. He denied using drugs and alcohol on the day in question. The judge considered not even giving instructions on intoxication: “This alcohol thing is kind of hard to handle, because there’s utterly no evidence in the case that he was under the influence of alcohol.” The judge gave the instruction only after defense counsel argued that “the jury at least should be made aware that it’s within the realm of their consideration.”
The judge also did not instruct the jury that intoxication could be considered in determining whether the killing was done with malice. Where the jury were instructed on intoxication under deliberate premeditation and where the juiy found premeditation, the failure to instruct the jury they could consider intoxication in deciding malice is not prejudicial. Commonwealth v. Wallace, 417 Mass. 126, 134 (1994).
Raymond did object based on authenticity, but that objection is insufficient to preserve a hearsay objection. See Commonwealth v. Cancel, 394 Mass. 567 (1985).
The Commonwealth’s argument that the statement was essentially the same as Stanislawski’s trial testimony and therefore was only cumulative evidence is not conclusive. The statement was introduced precisely because it does mirror Stanislawski’s trial testimony, and therefore might have a tendency to reinforce and corroborate Stanislawski’s trial testimony. Therefore, the statement could have a prejudicial effect even though it contained no new information implicating Raymond.
It is important to note that Raymond had a full opportunity to confront and cross-examine Stanislawski at trial.
The judge stated:
“Well, you are the impartial evaluators. You are to put yourself not in the position of anyone in the case but you are to determine the facts in evidence, as I said, as impartial evaluators of the evidence that’s been presented to you. Now that, those remarks concerning placing yourself in the victim’s position, were directed, it would appear, to the question of cruelty and atrocity. But, keep in mind you are exactly what I said. You are independent evaluators of the evi*391 dence as presented to you and you look at the evidence from no one’s point of view except that as an impartial arbitrator.”
Raymond cites decisions which discuss when the defendant is in custody and undergoing interrogation that Miranda warnings are required. Commonwealth v. Haas, 373 Mass. 545 (1977), S.C., 398 Mass. 806 (1986). United States v. Britton, 68 F.3d 262 (8th Cir. 1995), cert. denied, 517 U.S. 1105 (1996). His argument is that Miranda warnings are not required until there is both custody and interrogation. He then argues that, because Raymond did not realize he was in custody, Miranda warnings were too early. This argument and the cases cited are inapposite. Those cases define
Raymond’s mother owned the car which Raymond and Stanislawski used to pick up the victim.
The defendant asks us to adopt the standard enunciated in Bram v. United States, 168 U.S. 532, 542-543 (1897), which states that a confession must not be “obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . .” The Court of Appeals for the First Circuit has recognized that Bram, while never explicitly overruled, has been “modified.” United States v. Jackson, 918 F.2d 236, 241-242 (1st Cir. 1990). We agree that “under current precedent [Bram] does not state the standard for determining the voluntariness of a confession,” Arizona v. Fulminante, 499 U.S. 279, 285 (1991), under the Fifth Amendment or under art. 12. We do not find in art. 12 a requirement that we adopt the Bram standard.