39 Mass. App. Ct. 212 | Mass. App. Ct. | 1995
Lead Opinion
The defendant’s first trial on indictments charging him with murder in the first degree and two counts of armed robbery ended in a mistrial when the jurors were unable to reach a verdict. That trial was preceded by the denial, after a hearing, of the defendant’s motion to suppress certain statements made by him to police officers. When the Commonwealth announced its decision to seek a retrial, the defendant filed a motion to dismiss, relying on Berry v. Commonwealth, 393 Mass. 793 (1985), and alleging that a retrial would subject him to double jeopardy since there had been insufficient evidence to support a conviction in the first trial. The judge who presided at the first trial denied the motion after a hearing. The second trial in the Superior Court before another judge resulted in jury verdicts of guilty of murder in the second degree and two counts of armed robbery, following which the defendant was sentenced to three concurrent terms of life imprisonment. He appeals from the denial of his motion for a required finding of not guilty at the close of the Commonwealth’s case in the second trial and from the denial of his motions to suppress and to dismiss.
The evidence at the second trial,
The shooting and robbery occurred shortly after 1 a.m. on February 3, 1991. Police officers, who were in the neighborhood, received a radio message at 1:08 A.M. and were at the crime scene within a minute. The defendant was not within the building at 102 Hanover Street when the robbers entered the upstairs apartment, when the shot was fired, or when the police came. He was observed on the first floor of 102 Hanover Street approximately five minutes after the police had arrived. At that time, the defendant told a police officer he had just returned home and had not observed anything. No one saw the defendant return to 102 Hanover Street. A photograph of the defendant’s vehicle taken less than two hours after the shooting indicates it was parked on. the same side of Hanover Street as earlier when he drove it to the apartment, but pointing in the opposite and “wrong” direction. After being interviewed at a police station, the defendant told an interpreter, “I told them to rob only, not to hurt anybody,” and that he did not know why they shot one of the victims.
1. Sufficiency of the evidence. The case against the defendant was presented on the basis of his being a joint venturer with Lam and Long in the armed robberies committed by them and on the theory of felony-murder with respect to the killing that occurred in the course of those robberies. The well-established test for joint venture is “whether [the] defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.” Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983).
The defendant challenges the adequacy of the evidence only with respect to the “presence” requirement for joint venture. He argues that at the moment he left the premises at 102 Hanover Street, no armed robbery had been committed and that the evidence, while perhaps establishing his complicity in the uncharged crimes of conspiracy to commit, and accessory before the fact of, armed robbery, was insufficient to convict him as a principal in the crimes of armed robbery or felony-murder.
In arguing that we should conduct our review on the assumption that his last involvement with the crimes charged occurred when he unlocked the door at 102 Hanover Street and left the premises, the defendant takes a conveniently myopic view of the case, ignoring evidence of complicity stemming from his quick return to the scene and the change in the direction in which his vehicle was headed together with the reasonable inferences that may be drawn from that evidence.
A joint venturer has been defined as “one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime.” Commonwealth v. Soares, 377 Mass. 461, 470, cert, denied, 444 U.S. 881 (1979). See also Commonwealth v. Stewart, 411 Mass. 345, 350 (1991). Here, the evidence of shared purpose is overwhelming and readily could support the inference that the defendant’s quick return to the scene and the positioning of his car was for the purpose of making
“[I]f one is, by agreement, in a position to render aid he is an abettor even if he does not participate in the actual perpetration of the crime because his presence may encourage the perpetrator by giving him hope of immediate assistance.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). It reasonably may be inferred that the defendant, when he returned, did not know that the robbers had left the scene, and thus thought that he might be of assistance. Inferences permitted to a jury “need only be reasonable and possible and need not be necessary or inescapable.” Ibid. It is left to the jury to resolve conflicting reasonable inferences. Commonwealth v. Longo, 402 Mass. 482, 487 (1988). Our conclusion that the evidence was sufficient finds further support in the inconsistent statements originally given by the defendant to the police which may be construed as consciousness of guilt. See Commonwealth v. Mahoney, supra at 329.
As noted earlier (see note 2, supra), the evidence in the second trial, which we determined was sufficient, was substantially the same as that presented in the first trial. It follows that the evidence presented in the earlier trial was “legally sufficient to warrant a conviction.” Cramer v. Commonwealth, 419 Mass. 106, 109 (1994). The defendant’s motion to dismiss the indictments filed prior to the second trial on double jeopardy grounds, see Berry v. Commonwealth, 393 Mass, at 798, therefore, was properly denied.
2. The motion to suppress. The defendant claims that certain statements made by him at the Lowell police station during the early morning of February 3, 1991, were involuntary and the product of custodial interrogation, in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He also argues that later statements made on Febru
A judge (the motion judge), other than those who presided over the trials heard the motion to suppress and made comprehensive and detailed factual findings which we summarize. Shortly after the robbery and shooting, the defendant and several other persons voluntarily accompanied police to the police station where they were left alone in the roll call area. A police detective later spoke with the defendant in the presence of the others. During that time, the defendant was free to roam about. At 4:08 A.M., two police officers in civilian clothes began to interrogate the defendant in an interview room. The defendant told the officers that the robbers had followed him from Lowell and forced him to open the front door of his Lynn house. He was unclear as to when he became aware of their intent to rob. Concluding that an interpreter was necessary, the officers suspended the interview. The defendant again was free to roam about. At 5:52 a.m., the interview was resumed with the benefit of an interpreter. At this point, the interview was tape recorded, and the defendant, for the first time, was read his Miranda rights when an interpreter translated into Cambodian a card containing the Miranda rights in English.
On February 8, 1991, the defendant again volunteered to go to the Lynn police station where he was interviewed through another interpreter who advised him of his constitutional rights in Cambodian by reading from a “Cambodian Miranda card.” After indicating that he understood his rights and that he was willing to speak to the officers, the defendant made some inculpatory statements, whereupon he was arrested. Later, when alone with the interpreter, he volunteered additional inculpatory information.
After applying the analysis set forth in Commonwealth v. Bryant, 390 Mass. 729 (1984),
On similar grounds, the motion judge also decided that the 5:52 a.m. interview was noncustodial and, therefore, that the Miranda warnings given to the defendant were not necessary, and no suppression of his statements was required. He further concluded, on the basis of listening to the interview tapes, that the 5:52 a.m. interview was not aggressive notwithstanding the officers’ persistence in questioning after the defendant complained of hunger and a headache.
Recognizing the Commonwealth’s heavy burden, in the circumstances, of proving lawful waiver of the right to remain silent, see Commonwealth v. Doucette, 391 Mass. 443, 448 (1984), the judge also concluded that the defendant made a knowing, intelligent and voluntary waiver of his Miranda rights during the February 8 interview and that his statements during and after that interview were voluntary beyond a reasonable doubt and, therefore, not to be suppressed.
The defendant grounds his claim of error on evidence not alluded to by the motion judge in his written findings such as the small size and bleakness of the interview room, the relative height and weight of the officers and the defendant, the unholstering of a gun by one of the officers during the interview, and the defendant’s nervousness and difficulty in understanding and speaking English. The judge apparently took into account the physical characteristics of the interview room when he noted that the interrogation took place in the “detective’s room” and that this fact by itself did not create a coercive environment. The evidence also indicates that the display of the gun was undertaken in an effort to assist the defendant in describing the gun he saw in the Toyota and not to intimidate him.
3. Evidentiary issue. After Kun Vorn testified for the prosecution under a grant of immunity, defense counsel, on cross-examination, elicited testimony that could be construed as establishing that the witness did not tell the police the “whole truth” when she first spoke to them after the robbery and shooting.
Judgments affirmed.
Orders denying the motions to suppress and to dismiss affirmed.
In the circumstances, the defendant was entitled to review of the denial of his motion to dismiss by a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3. Fadden v. Commonwealth, 376 Mass. 604, 606 (1978), cert, denied, 440 U.S. 961 (1979). Ventresco v. Commonwealth, 409 Mass. 82, 85 (1991). Koonce v. Commonwealth, 412 Mass. 71, 72 (1992). There is no indication in our record that this “appropriate procedure” was pursued. See Smith, Criminal Practice & Procedure § 1303 (2d ed. 1983 & Supp. 1995). No argument is raised that failure to pursue that procedure constitutes waiver of the sufficiency of the evidence issue in the first trial. In any event, the same issue is presented to this court by the defendant’s appeal from the denial of his motion for a directed verdict in the second trial. See note 2, infra. See Neverson v. Commonwealth, 406 Mass. 174, 176 n.2 (1989).
The parties have indicated in their respective briefs that the evidence was essentially the same at both trials with the exception of an added pros
Both Long and Lam were convicted of murder in the first degree, armed assault in a dwelling, and two counts of armed robbery. Decisions with respect to their appeals appear in Commonwealth v. Vann Long, 419 Mass. 798 (1995) (judgments reversed because of error in jury empanelment process), and Commonwealth v. Oeun Lam, 420 Mass. 615 (1995) (judgments affirmed).
Accordingly, we need not address the approach taken by the judge in her decision denying the motion to dismiss. She opined that a defendant can be found guilty of a joint venture by rendering assistance immediately before the commission of the crime.
The defendant makes no issue of statements taken by police at the crime scene or an unsolicited statement made by the defendant to an interpreter.
The interpreter was connected with the victim witness program conducted by the Essex County district attorney. While we agree with the motion judge’s observation that the interpreter’s “attempt at translating the Miranda warnings into Cambodian (Khmer) was less than exemplary,” that failing is immaterial in light of our concurrence with the motion judge’s determination that the February 3 interviews were not custodial and that Miranda warnings, at that time, were unnecessary. For a discussion of the need for qualified interpreters, see Supreme Judicial Court Commission to Study Racial and Ethnic Bias in the Courts, Equal Justice 33-53 (1994). Compare Commonwealth v. Bui, 419 Mass. 392, 396 (1995) (“[a]fter an interpreter in Vietnamese repeated Miranda warnings that a State trooper read in English, the defendant signed a card with Miranda warnings written in Vietnamese . . .”).
The findings of the motion judge can be read as indicating that the interview which started at 5:52 a.m. lasted until 7:35 a.m. The record indicates that interview ended at approximately 6:41 a.m. and that another recorded interview was conducted from 7:20 a.m. until 7:37 a.m. We treat the motion judge’s references to the 5:52 a.m. interview as encompassing both of those recorded interviews.
A court must engage in a “subjective inquiry — whether, from the point of view of the person being questioned, the interrogation took place in a coercive environment — by reference to objective indicia.” Commonwealth v. Bryant, supra at 736. The factors to be considered are “(1) the place of the interrogation; (2) whether the investigation has begun to focüs on the suspect, including whether there is probable cause to arrest the suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the suspect; and (4) whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave. . . .” Id. at 737. See Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (“[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation”).
The judge also found that one of the officers conducting the 4:08 a.m. interview suspected that the defendant somehow might have been involved in the crimes. There is no indication in the record that, such suspicion was communicated to the defendant. “It is well settled . . . that a police officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda." Stansbury v. California, 114 S. Ct. 1526, 1529-1530 (1994).
The transcript of the 5:52 a.m. interview indicates that the defendant, in response to a question as to what type of gun he saw, answered that it was similar to a police gun, but shorter. At that point, one of the interviewing officers apparently showed the defendant his gun and asked “[i]s it like this gun?”
With respect to police questioning of the defendant at the scene of the shooting, not here in issue, the motion judge noted the testimony of a witness regarding the “death camp” mentality of certain Cambodians, and their inability to defy authority. Although he found this testimony “generally credible,” he concluded that the February 3 circumstances did not
Defense Counsel: “Now, after that night when you went to the police . . . you didn’t tell them the whole truth . . . did you?”
Witness: “That time because I was so scared, I just spoke to them and then afterwards I forgot.”
Concurrence Opinion
(concurring). When the chaff is separated from the wheat, the conclusion is inescapable that the defendant was a joint venturer. He “encourage [d] commission of a crime while sharing with the principal [s] the mental state re
What concerns me most is the manner in which the police investigators dealt with the defendant’s apparent difficulty in understanding English. Of course, an interpreter is called for in such situations, but it should go without saying that the interpreter should be competent. There is no excuse for not having available at the outset a Miranda card in the relevant language. Here, the failure not to utilize a Miranda warning card in Cambodian in the Lynn area is incomprehensible.
Lastly, the majority does well to cite the recent report of the Commission to Study Racial and Ethnic Bias in the Courts, created by our Supreme Judicial Court, entitled, “Equal Justice” (1994), for the edification of the public at large, as well as judges and attorneys. This is one study that should not be placed on the bookshelf next to the canons of ethics to gather dust together.