Opinion
10-P-1638
08-09-2011
COMMONWEALTH v. DERIC ALLEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was found guilty of armed burglary and a lesser included charge of assault and battery; he was found not guilty of assault with intent to rape. He argues for the first time on appeal that his conviction of armed burglary should be reversed 'because the trial court failed to make the necessary determination that the defendant's statement to the police that he entered the residence to steal some items was a voluntary statement. We affirm.
The judge found the defendant not guilty on so much of the assault and battery indictment as charged that it was committed by means of a dangerous weapon.
Although the defendant's notice of appeal included the assault and battery conviction, he has advanced no appellate argument concerning it.
Background. The judge heard evidence that the defendant, after consuming a considerable amount of alcohol and arguing with his girlfriend, went to the victim's house. He broke a window with a brick from the patio, entered the house, armed himself with a knife in the kitchen, and went quietly upstairs without turning on any lights, using only a lighter for illumination. The victim heard the defendant as she was lying in bed on the second floor; she called 911 and hid under her blankets. The defendant entered her bedroom and got onto her bed, straddling her with both legs and holding the knife. When the victim began to scream, the police, who had responded to the 911 call, kicked in the back door of the house and went upstairs. They found the defendant on top of the victim who was still yelling; they ordered the defendant to get off the bed and the victim told them that he had a knife. After the defendant was arrested, the police found a lighter and a knife from the victim's kitchen in her bed.
Several police officers testified that the defendant was very intoxicated. However, Officer Fahey, who took the defendant into custody, testified that he walked downstairs without assistance while handcuffed from behind. He responded without difficulty to various booking questions. He took off his belt and shoes without assistance, and he exercised his right to make a telephone call. He was advised of his Miranda rights and signed a form indicating that he understood them and that he was willing to speak with the officer.
There was evidence that the defendant was placed in protective custody because he was thought to be intoxicated; that the sergeant made a determination not to interview him because he was intoxicated; and that Officer Fahey eventually stopped interviewing the defendant, concluding that waiting for the detectives in the morning would give the defendant 'time to sober up, so to speak, a little bit.'
In response to Fahey's question about why he was in the victim's home, the defendant gave a variety of responses. He told the officer that he had thought that he was in his own home and in bed alone. He said that he could not understand why the front door was locked and later that he had entered through the front door. At another point, he told Fahey 'that he did go inside to steal some items. He didn't realize that anyone was home.' In all, Fahey testified, 'The story . . . changed so many times in so many different ways that it was very difficult to record exactly what he . . . said.'
It is this statement that is the subject of this appeal.
The only real issue at trial involved the defendant's intent: first on the assault with intent to rape charge; and second on the armed burglary charge, that is, whether at the time of the breaking and entering he intended to commit a felony inside the residence. It was the defendant's position that he was too drunk to form an intent to do those things, that he thought that the screaming woman in the bed was his girlfriend, and that there was no reason to believe that he had any intent to steal. He did not move to suppress the statement that he had entered the house intending to steal nor did he request a voir dire hearing on the issue of voluntariness.
The defendant concedes that 'the Commonwealth presented overwhelming evidence that the defendant broke into and entered [the victim's] residence in the night time.'
Discussion. The defendant contends that his statement regarding his intent to steal was not voluntary because of his intoxication; the judge, in his view, should have inquired sua sponte about the statement's voluntariness and then excluded it. Failure to do so, he argues, constituted a substantial risk of a miscarriage of justice.
The defendant does not allege that his counsel was ineffective for failing to move to suppress the statement or failing to request a hearing on voluntariness during the trial.
''[A]n admission . . . is admissible only if it is voluntarily made.' Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997) . . . 'But the question of voluntariness must be raised by a defendant, and he must offer some proof to support his claim.' Commonwealth v. Smith, 426 Mass. 76, 82 (1997). Moreover, a defendant may make a reasonable tactical decision not to request a voir dire even when there is evidence of involuntariness. . . . In the absence of such a request, the judge still must conduct a voir dire if evidence of a 'substantial claim of involuntariness' arises at trial. Commonwealth v. Brady, 380 Mass. 44, 49 (1980), quoting Commonwealth v. Harris, 371 Mass. 462, 470 (1976).' Commonwealth v. Cutts, 444 Mass. 821, 832 (2005).
At the outset, we note that the defendant has not shown that the absence of an objection to his statement that he intended to steal was not a tactical choice. Such a tactic would have been reasonable, particularly since the defendant sought primarily to defend against the charge that he intended to rape the victim, a conviction that likely would have exposed him to a more severe sentence. See Commonwealth v. Serino, 436 Mass. 408, 414 (2002) ('A defendant is free to decide how his case will be tried'). Such a tactic would not have been unreasonable. 'Appellate review is not intended 'to afford an opportunity, from the vantage point of hindsight . . . to attempt to convert the consequences of unsuccessful trial tactics and strategy into alleged errors by the judge." Commonwealth v. Laurore, 437 Mass. 65, 80 (2002), quoting from Commonwealth v. Benoit, 410 Mass. 506, 517 (1991). Compare Commonwealth v. Zagrodny, 443 Mass. 93, 96-98 (2004).
Indeed, the defendant was in fact acquitted of the assault with intent to rape charge, despite the fact that he was found straddling the victim in her bed while holding a knife.
Second, the defendant concedes that none of the cases that address the judge's responsibility sua sponte to inquire into the voluntariness of a statement arise from bench trials, where the judge is the factfinder as well as the gatekeeper. The question of the defendant's level of intoxication was thoroughly explored at trial; the defendant does not suggest what other evidence might have been produced in a separate voir dire hearing on the issue of voluntariness. Nor can it be contended that the judge should have read to himself, on the record, a humane practice instruction. 'A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as factfinder.' Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002).
However, even had this been a jury trial, we would see no obligation for the judge to have initiated an inquiry into the voluntariness of the defendant's statement. The issue turns on whether the voluntariness of his statement was a live issue at trial, notwithstanding the defendant's failure to raise it. See Commonwealth v. Sheriff, 425 Mass. at 193 ('Where the voluntariness of a defendant's statement is a live issue, such that evidence of "a substantial claim of involuntariness' is produced, a trial judge must conduct a voir dire on the question of voluntariness even though no such request has been made by defense counsel''), quoting from Commonwealth v. Brady, 380 Mass. at 49.
'The test for voluntariness of a defendant's statement 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).' Commonwealth v. McCowen, 458 Mass. 461, 471 (2010). Although there was evidence here of the defendant's intoxication, '[i]ntoxication alone is not sufficient to negate an otherwise voluntary act.' Commonwealth v. Doucette, 391 Mass. 443, 448 (1984). The Supreme Judicial Court has 'never held that mere evidence of drinking alcohol or using drugs triggers a trial judge's obligation to inquire into the voluntariness of an admission or confession absent a defendant's objection.' Commonwealth v. Brady, 380 Mass. at 49. See Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 274 (1999), and cases cited.
In this regard, the only significant issue at the trial was whether the defendant was so intoxicated that he was unable to form an intent to commit a rape or another felony when he broke into the victim's home and assaulted her. In finding the defendant guilty of armed burglary but not guilty of assault with intent to rape, after hearing conflicting evidence on his level of intoxication, the judge necessarily concluded, beyond a reasonable doubt, that the defendant was sober enough to form a specific intent to steal at the time of the crime, some time well before the statement was made. That conclusion was well supported by the evidence.
In addition, the defendant alleges no other circumstance that would render his statement involuntary: no threats or misrepresentations by the police ; no history of mental illness, mental incapacity, or physical injury; and certainly no allegation of police mistreatment. Contrast Commonwealth v. Harris, 371 Mass. at 472 ('We believe that where, as here, testimony has been given that a defendant has confessed to the police only after having been beaten by them, a trial judge has a responsibility -- independent of a request by defense counsel or the prosecution -- immediately to order a voir dire on the voluntariness of that confession').
'The use of false information by police during an interrogation is deceptive and is a relevant factor indicating a possibility that the defendant's statements were made involuntarily.' Commonwealth v. Selby, 420 Mass. 656, 664 (1995).
''[E]vidence of insanity usually raises the issue of voluntariness." Commonwealth v. Sheriff, 425 Mass. at 193, quoting from Commonwealth v. Cole, 380 Mass. 30, 41 (1980).
Under all of the circumstances of this case, we see no substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Wolohojian, Milkey & Hanlon, JJ.),