Opinion
No. 12–P–120.
2013-03-15
COMMONWEALTH v. Charles YOUNG.
By the Court (FECTEAU, HANLON & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was acquitted of assault with intent to murder and assault and battery by means of a dangerous weapon, and convicted of possession of a firearm and possession of ammunition. On appeal, he contends that (1) his motion to suppress his statements should have been allowed because he did not knowingly, intelligently, and voluntarily waive his Miranda rights and his statement was not voluntary, and (2) the failure to instruct the jury that the untaped portion of his statement should be viewed with “great caution” created a substantial risk of a miscarriage of justice. We affirm.
Motion to suppress. The defendant contends that the judge's conclusion that his Miranda waiver was knowing, intelligent, and voluntary, and that his statement was voluntary beyond a reasonable doubt, was in error because the testimony at the hearing established that the defendant, age eighteen at the time of arrest, was of borderline intelligence, and had significant cognitive deficits. Furthermore, he had been the victim of a shooting with a bullet in his spine or neck, a jaw from which the wires had been removed at the hospital three hours before the interrogation, and his paralyzed arm was in a sling. There was evidence that he was on medication which, in sufficient doses, could have impaired his mental functioning. Finally, the police conducted an untaped, “pre-interview” of the defendant, during which the defendant claims he was rehearsed. As a result, the defendant maintains, the judge's findings were clearly erroneous and the totality of the circumstances compel the conclusion that the Commonwealth failed to prove beyond a reasonable doubt that the defendant's Miranda waiver was knowing, intelligent, and voluntary, and that his statement was voluntary. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The Commonwealth bears the burden of proving beyond a reasonable doubt that a Miranda waiver was made voluntarily, knowingly, and intelligently. Commonwealth v. Jones, 439 Mass. 249, 256 (2003). The Commonwealth also bears the burden to prove beyond a reasonable doubt that the statements were made voluntarily. Ibid. “Although the validity of a defendant's Miranda waiver and the voluntariness of his statements are separate inquiries, we use a totality of the circumstances test for both.” Id. at 257. Relevant factors include the “conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, [and] physical and mental condition.” Commonwealth v. Martinez, 458 Mass. 684, 692 (2011), quoting from Commonwealth v. Mandile, 397 Mass. 410, 413 (1986).
The defendant also argues that the judge failed to properly consider the absence of a signed Miranda waiver, and improperly credited testimony that the defendant had waived his Miranda rights before the unrecorded portion of the interview. The judge's findings that the defendant had waived his Miranda rights were not clearly erroneous. See Commonwealth v. Woodbine, 461 Mass. 720, 727–729 (2012). Sergeant Detective Keeler testified that he gave the Miranda warnings before the defendant consented to the first, unrecorded, interview. The defendant also acknowledged receiving the warnings in his recorded interview, although this, in and of itself, does not corroborate the police officer's testimony. See id. at 727 n. 14.
Here, the evidence supported the judge's findings that the statement was voluntary and the Miranda waiver was knowing, intelligent, and voluntary. The judge recognized that the defendant had cognitive limitations, but found that he made an intelligent choice to cooperate with the officers, as demonstrated by his decision to admit that he was present and plead self-defense when confronted with the videotape of his participation in the shooting. The fact of cognitive limitations “does not compel a determination as matter of law” that the defendant did not “knowingly and willingly waive his Miranda rights and make a voluntary confession.” Commonwealth v. Daniels, 366 Mass. 601, 607 (1975). The judge likewise recognized that the defendant had suffered an injury and had recently undergone a medical procedure, for which a prescription pain medication, Roxicet, had been prescribed. Sergeant Detective Keeler testified, however, that the defendant was lucid and responsive. The officer was permitted to rely on his observations of the defendant, see Commonwealth v. Lanoue, 392 Mass. 583, 589 (1984), and the judge was therefore “warranted in concluding that the statements were the product of a rational intellect.” Commonwealth v. Allen, 395 Mass. 448, 457 (1985). Finally, while the initial interview was not taped, there is no evidence in the record of coercive, threatening, or misleading interrogation techniques. Contrast Commonwealth v. Baye, 462 Mass. 246 (2012). We discern no error.
The defendant initially denied being present, but when shown a videotape that showed him shooting into the victim's car, he stated he had acted in self-defense. His taped interview was played for the jury and he was acquitted of assault with intent to murder and assault and battery by means of a dangerous weapon.
The defendant's expert acknowledged that the defendant had extensive experience with the criminal justice system, and that she had concerns that he was manipulating the interview and exaggerating his mental deficiencies during her evaluation.
An emergency room physician testified that if the defendant had taken two swigs of the medication he would have been impaired at the time of the interview. However, he acknowledged that his answer was hypothetical, based on an affidavit of the defendant provided to him but not submitted to the court. This testimony was not credited by the judge. In his recorded interview, the defendant stated that the medication had not affected him and that he understood what had happened in the interview.
DiGiambattista instruction. The judge instructed the jury that “the Supreme Judicial Court, our highest court, has expressed a preference that the police tape record statements whenever practicable. When a statement of a person is not recorded, the jury should weigh that statement with great care.” The defendant argues that the judge was obligated to instruct the jury that they should weigh his statement “with great caution and care.” Commonwealth v. DiGiambattista, 442 Mass. 423, 448 (2004). No objection was made at trial to the omission of the word “caution.” The defendant must therefore demonstrate that the omission was error that resulted in a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). “While the instruction is mandatory, ... [the Supreme Judicial Court has] not required that the precise language of the instruction be used.” Commonwealth v. Barbosa, 457 Mass. 773, 801 (2010). Read as a whole, the statement that the State's highest court has expressed a preference for taped statements, coupled with the admonition to weigh the defendant's statement with “great care” lent sufficient gravity and completeness to the instruction. Compare ibid.
Judgments affirmed.