12 Mass. App. Ct. 970 | Mass. App. Ct. | 1981
The defendant appeals from his convictions of kidnapping (G. L. c. 265, § 26), and rape (G. L. c. 265, § 22). The case was tried to the jury under the alternative theories that the defendant either kidnapped and raped the victim himself, or assisted another man in kidnapping and raping her. On appeal, he claims (1) that a statement to the police in which he confessed his guilt was improperly admitted in evidence and (2) that remarks by the judge within the hearing of the jury, to the effect that a joint venture had been established, amounted to an improper direction of a verdict on that issue. We affirm the convictions.
1. The defendant’s contentions with respect to his statement to the police rest on facts which are said to negate a knowing and intelligent waiver of his constitutional rights. These facts are that he (1) was twenty years old, (2) was frightened, confused, and in an excited emotional state throughout his questioning by the police, and (3) is of below normal intellect. The judge denied the motion to suppress but made no explicit findings of fact, either from the bench or by way of written memorandum. Because the judge has retired, the case cannot be readily remanded for him to make findings at this time. See Commonwealth v. Forrester, 365 Mass. 37, 45 (1974). See also Commonwealth v. Worlds, 9 Mass. App. Ct. 162, 165 n.4 (1980). Nevertheless, the judge’s denial of the motion implies findings that the defendant understood his Miranda rights, that he knowingly and intelligently waived them and chose to give the police a written statement, and that the statement was made by him freely and voluntarily. Commonwealth v. Garcia, 379 Mass. 422, 430-431 (1980). We have examined the evidence presented at the voir dire on the motion to suppress with “special care” (Haley v. Ohio, 332 U.S. 596, 599 [1948]) and are able to conclude that these implicit findings are supported by the evidence. See Commonwealth v. Williams, 378 Mass. 217, 224-225 & n.4 (1979); Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981). Factors such as the age of the defendant or the stress inherent in a custodial interrogation will not automatically invalidate a waiver. See Commonwealth v. Hooks, 375 Mass. 284, 289 (1978); Commonwealth v. Brady, 380 Mass. 44, 49 (1980); Commonwealth v. Wilborne, 382 Mass. 241, 251-252 (1981). Likewise “an adult with a diminished or subnormal mental capacity may make an effective waiver of his rights and render a voluntary, knowing and admissible confession.” Commonwealth v. Daniels, 366 Mass. 601, 606 (1975). See Commonwealth v. White,
2. On several occasions during the trial, the judge, in ruling on objections to the admission of evidence regarding the conduct of the second participant in the crimes, stated his belief that the evidence established the existence of a joint venture. On one of these occasions the judge ruled “as a matter of law that there was a joint venture on the part of both participants.” Despite these comments, the judge indicated that he considered the issue to be one for the jury. In the charge, the judge gave the jury extensive instructions about the necessity of finding that the defendant actively participated with another in a common enterprise before they could conclude that the defendant was guilty on a joint venture theory. The judge’s comments during the trial were unfortunate because “ [t]he influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling.” Commonwealth v. Hanscomb, 367 Mass. 726, 732 (1975) (Hennessey, J. concurring), quoting from Quercia v. United States, 289 U.S. 466, 470 (1933). However, in view of his comprehensive final instructions on the issue, it is unlikely that the jury were misled by those comments (cf. Commonwealth v. Hanscomb, supra at 731) or that they failed to heed their responsibility with respect to the question of joint venture as explained in those instructions. Even if error is assumed, it was harmless beyond a reasonable doubt. See Commonwealth v. Hanger, 377 Mass. 503, 511 (1979). In the posture of the case as it went to the jury, the defendant’s own statement corroborated in detail all the facts of the victim’s testimony which were necessary to support a verdict under the alternative joint venture theory.
Judgments affirmed.