Opinion
14-P-1805
03-04-2016
COMMONWEALTH v. ANDREW BRITT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Andrew Britt, appeals from his conviction of assault and battery by means of a dangerous weapon. The defendant argues that (1) certain inculpatory evidence admitted at trial should have been suppressed because the Commonwealth failed to prove that the defendant's Miranda waiver was knowing, intelligent, and voluntary, and (2) impeachment evidence was erroneously admitted at trial. We affirm.
1. Miranda waiver. The defendant contends that because he did not explicitly acknowledge that he understood his Miranda rights after they were read to him, the Commonwealth failed to prove, beyond a reasonable doubt, that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. Therefore, argues the defendant, certain inculpatory statements he made should have been suppressed, and their admission was not harmless beyond a reasonable doubt.
Although the defendant did not file a motion to suppress this evidence, the defendant asserts that there was a seasonable objection at trial, which saves his rights on appeal. See Mass.R.Crim.P. 13(c)(2), as appearing in 442 Mass. 1516 (2004); Commonwealth v. Adams, 389 Mass. 265, 270 n.1 (1983) ("[N]oncompliance [with rule 13(c)(2)] can be excused because it is not clear that the defendant was aware of the failure of the police to give the full Miranda warnings"). The Commonwealth argues that the defendant has waived his argument on appeal. See Commonwealth v. Woods, 419 Mass. 366, 370 (1995) (except in "certain very limited circumstances" the "proper method for challenging the admissibility of a statement allegedly obtained in violation of the Miranda standards is a pretrial motion to suppress or a motion for a voir dire"). We need not decide whether the defendant waived this argument, however, because there was no error in the admission of the evidence.
The Commonwealth must prove beyond a reasonable doubt that, based upon the totality of the circumstances, the defendant made a valid waiver of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 475 (1966); Commonwealth v. Edwards, 420 Mass. 666, 669-670 (1995). Relevant factors include, among other things, the "conduct of the defendant, the defendant's age, education, intelligence and emotional stability, . . . physical and mental condition, . . . and the details of the interrogation, including the recitation of Miranda warnings." Commonwealth v. Bell, 473 Mass. 131, 142 (2015) (citation omitted). "Explicit statements by the defendant that he understood his rights and waived them are not essential to a finding of a valid waiver." Commonwealth v. Aarhus, 387 Mass. 735, 747 (1982). See Commonwealth v. Valliere, 366 Mass. 479, 487 (1974).
The judge admitted testimony of the officers regarding statements made by the defendant after receipt of Miranda warnings, but in the absence of an express oral or written waiver. On appeal, the salient facts are undisputed; whether the facts are sufficient to support a finding of waiver is the issue. The police found the defendant hiding under a stairwell in the basement of the Britt three-family home. The defendant was bleeding from a cut on his hand, and had blood on his clothing. He was handcuffed, taken upstairs, and given Miranda warnings by Detective Bickerton. When asked by Detective Bickerton whether he understood his Miranda rights, the defendant did not respond.
Before the jury heard the testimony, the judge gave the humane practice instruction. See Commonwealth v. Harris, 371 Mass. 462, 469-470 (1976).
Detective Bickerton then "explained to [the defendant] that [the police officers] needed to locate the knife" that was used to stab Johnny Byrd, and "that [the police officers] would need to freeze the location pending the issu[ance] of a search warrant." In response, the defendant stated that the knife was not in the house, and that he would take the police to the place where the knife was located. The defendant was put in the police cruiser. He gave the officers clear and understandable directions to the location where the knife could be found. When they arrived, the defendant told the officers that the knife was "by the wall in the grass." Detective Bickerton located the knife in the grass.
The Commonwealth also offered evidence that the defendant was polite and cooperative, did not say at any point that he did not wish to speak with the police, did not appear to be under the influence of any drugs or alcohol, understood the questions posed by the police officers, and gave appropriate responses. Based on the totality of the circumstances, the Commonwealth met its burden to prove, beyond a reasonable doubt, that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. See Bell, 473 Mass. at 142; Edwards, 420 Mass. at 672 ("It is significant that the defendant never invoked his right to remain silent nor his right to have counsel before he began to make his inculpatory statements" [citation omitted]).
2. Impeachment evidence. There was error in the Commonwealth's impeachment of its own witness, Joycelyn Brown. During direct-examination, Brown testified that she did not see the defendant with a weapon. During direct examination of another witness, Officer Clutterbuck, the Commonwealth introduced Brown's prior statement that she saw the defendant take a knife out of his pocket. The Commonwealth did not first lay a proper foundation to contradict the testimony of its own witness. See G. L. c. 233, § 23; Commonwealth v. Evans, 439 Mass. 184, 191-192 (2003). The defendant objected, on the ground that the jury would improperly use the evidence, and on the ground of improper impeachment. The Commonwealth asserts that the objection was not sufficient to preserve the issue on appeal. Whether viewed as unpreserved error reviewed for a substantial risk of miscarriage of justice, see Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 238-239 (2012), or preserved error reviewed for prejudice, see Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), the result is the same, since under even the more exacting standard of review, the error was not prejudicial.
The defendant did not open the door to the impeachment evidence or otherwise create a foundation, because the defendant did not cross-examine the witness. Contrast Commonwealth v. Evans, supra.
The judge instructed the jury that the inconsistent statement was not to be used for the truth of the matter asserted and that it could only be considered to determine the credibility of Brown's in-court testimony, an instruction that was reiterated at the close of the evidence. The jury were presumed to have followed these instructions. See Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010). There was no reference to the impeachment evidence during the Commonwealth's closing argument, and the evidence of the defendant's guilt was otherwise strong. The fact of a physical altercation between the defendant and the victim, Johnny Byrd, a sixty year old Special Forces veteran, was undisputed, as were the multiple stab wounds suffered by Byrd during the confrontation. The defendant led the police to the knife, and Byrd testified to seeing the defendant remove the knife from his pocket. The focus of the defense at trial was self-defense and defense of another. Although the defendant attacked Byrd's credibility at trial, and also suggested that others may have committed the stabbing, we are convinced that the impeachment evidence, given the judge's admonition not to consider Officer Clutterbuck's testimony for the truth of the matter asserted, "did not influence the jury, or had but very slight effect." Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012) (citation omitted).
The defense theory was that Byrd and another witness were lying to protect the liquor license of the establishment where the incident took place.
Judgment affirmed.
By the Court (Hanlon, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 4, 2016.