Com. v. Parham

• Citation: 460 N.E.2d 589,390 Mass. 833
• Parties: COMMONWEALTH v. Neil PARHAM.
• Decision Date: 23 January 1984
• Court: United States State Supreme Judicial Court of Massachusetts

Page 589

460 N.E.2d 589

390 Mass. 833

COMMONWEALTH v. Neil PARHAM.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 5, 1983.

Decided Jan. 23, 1984.

Steven J. Rappaport, Boston, for defendant.

David B. Mark, Asst. Dist. Atty., for Com.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

In November, 1975, Neil Parham was tried before a jury and found guilty of murder in the first degree, armed robbery, and armed assault with intent to rob. Parham's convictions were the result of indictments stemming from a slaying on October 14, 1974, in which Parham and two companions ¹ were alleged to have stolen a car and followed a taxicab from downtown Boston until its arrival on Sunnyside Street in Jamaica Plain where it discharged the passengers. Parham and his companions attacked the taxicab driver and one passenger. In the ensuing melee, the victim, that passenger, was fatally stabbed. The booty from this episode was four one dollar bills.

Parham received a mandatory sentence of life imprisonment on the murder charge, with concurrent terms of seven to ten years on the other charges, on November 21, 1975. The case is before us for review pursuant to our powers under G.L. c. 278, § 33E, following the allowance of Parham's petition to file a late claim of appeal by a single justice of this court.

Parham asserts that the following errors require reversal of his convictions: (1) the admission in evidence of his confession absent a showing by the Commonwealth of a voluntary, knowing, and intelligent waiver of rights secured to him by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and absent a showing that the confession was voluntarily given; (2) the trial judge's failure to instruct the jury, in accordance with Massachusetts' "humane practice", concerning the issue of the voluntariness of the confession; (3) the failure to suppress the defendant's confession as the fruit of illegally obtained evidence; (4) ineffective assistance of counsel by reason of the failure of trial counsel to file a claim of appeal from the first degree murder conviction; and (5) the omission from the jury charge of an instruction that a verdict of guilty of felony-murder based on armed robbery could only be made if the jury found the defendant had knowledge that a coparticipant was in possession of a dangerous weapon. In addition, Parham requests that this court direct the entry of a verdict of a lesser degree of guilt pursuant to G.L. c. 278, § 33E.

Of the issues enumerated above, only the first, relating to Miranda standards and voluntary confessions, is founded upon exceptions saved at trial. ² Review of all other matters which Parham raises for the first time on appeal, is limited to a determination whether the alleged errors created a substantial risk of a miscarriage of justice. Commonwealth v. Atkins, 386 Mass. 593, 596, 436 N.E.2d 1203 (1982).

For the reasons stated below, we conclude that there was no error as to the Miranda and voluntariness issues, nor does this case present an appropriate occasion for the exercise of our powers under G.L. c. 278, § 33E.

1. Preliminary events. The record reveals the following sequence of events leading to Parham's arrest. On a Sunday afternoon, in February, 1975, Boston Police Detective Francis J. McCarthy noticed Parham on a Roxbury street carrying a canvas bag with an object protruding from it. Detective McCarthy stopped Parham, identified himself as a police officer, and recognized the object as a "dent puller." He asked Parham to accompany him to the police station because McCarthy was not certain that the dent puller was a burglarious implement. Parham accepted McCarthy's invitation.

In the police cruiser on the way to the police station, Parham gave Detective McCarthy his brother's name. McCarthy, who was familiar with Parham's family, then realized who Parham actually was, and that there existed an outstanding murder warrant for his arrest. He so informed Parham, who was also aware of the warrant and of the police visits to his mother's home in connection with the murder warrant.

Detective McCarthy placed Parham under arrest for murder as soon as the vehicle stopped outside the police station. Parham surrendered a gun which he had been carrying. McCarthy attempted to recite Miranda warnings, but was interrupted several times by Parham, who begged McCarthy for a "break" and told McCarthy he had tried to reach him concerning the murder warrant, but had been unable to do so.

Once inside the station, McCarthy recited the Miranda rights in full, and asked Parham if he would be willing to speak to Detective Peter J. O'Malley, who was also investigating the Sunnyside Street murder. Parham agreed to do so. Detective O'Malley interviewed Parham, at some point showing him some papers connected with the investigation. There is some conflict in the record as to whether Parham was shown only the warrant for his arrest or another defendant's statement, and this will be discussed later.

Parham agreed to permit a tape recording of his version of the incident on Sunnyside Street. Detective O'Malley repeated Miranda warnings at least once and possibly twice, before and at the outset of the taping. Detective O'Malley told Parham that an attorney from the Roxbury Defenders Committee would be available to him for counselling that day if he so desired, and that when he was arraigned, the court would appoint a "good lawyer," one with "at least ten years' experience." At some point prior to taping, Parham requested that he be allowed to telephone his sister. Her line was then busy but the call was placed later and Parham spoke to his sister subsequent to the tape recording.

The second side of the tape never recorded, probably due to a mechanical failure. The first side of the tape was played at trial. Parham's statement reveals his companions' design to steal an automobile, their plan to follow the taxicab to steal the driver's money, and the incident on Sunnyside Street. Parham's version of the events, if believed, reflected knowledge of the plan, his recalcitrant participation, knowledge that his friends carried pocket knives, and a reluctance on Parham's part to venture beyond the stolen vehicle to the area where the stabbing and robbery occurred. Parham admitted to waiting for one of the participants until he ran back to the car and then they both sped away.

2. The suppression hearing. Parham alleges error in the trial judge's refusal to suppress his statement on the theory that there was no valid waiver of his Miranda rights and that the confession cannot, considering the totality of the circumstances, be considered voluntary. Parham asserts that he was "herbed up" (intoxicated by marihuana), and thus unable to make a meaningful and intelligent waiver of his Miranda rights. He avers that the police reference to a "good lawyer" to be appointed at arraignment led him to believe an attorney from the Roxbury Defenders Committee could not adequately assist him in the police station. He states that he was denied access to the telephone until making his statement. Further, Parham contends that, owing to the inherently coercive atmosphere of the police station, his lack of education, and the presence of four police officers during questioning, the trial judge erred in concluding that he made a knowing and intelligent waiver of Miranda warnings. Alternatively, but on the same alleged factual basis, Parham asserts that his confession was not a free and voluntary act.

The trial judge made no findings of fact in denying Parham's motion to suppress. Although they would have proved helpful, their omission is not fatal, for his conclusion is reviewable as a matter of law. Although it would have been prudent for the judge to make findings of fact, we think that the judge's decision to admit the defendant's statements renders the judge's conclusions as to voluntariness "clearly evident from the record." Commonwealth v. Brady, 380 Mass. 44, 52, 410 N.E.2d 695 (1980), quoting Jackson v. Denno, 378 U.S. 368, 378-379, 84 S.Ct. 1774, 1781-1782, 12 L.Ed.2d 908 (1964).

In reviewing Parham's contentions, we are aware that two separate questions are before us: first, whether the Miranda requirements have been scrupulously met, and a knowing and intelligent waiver of them made; and second, whether in the totality of the circumstances, apart from formal compliance with Miranda, the confession given was the product of a free will, and not the result of coercion or intimidation. Commonwealth v. Williams, 388 Mass. 846, 851, n. 2, 448 N.E.2d 1114 (1983). The Commonwealth bears a heavy burden of demonstrating voluntariness, evidence of which must affirmatively appear from the record. ³ Every reasonable presumption against voluntariness will be indulged. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Commonwealth v. Hosey, 368 Mass. 571, 577, 334 N.E.2d 44 (1975). Where the defendant claims to have been under the influence of drugs, special care must be taken in assessing the voluntariness issue, although intoxication alone is not sufficient to negate an otherwise voluntary act. Commonwealth v. Hooks, 375 Mass. 284, 289, 376 N.E.2d 857 (1978).

Testimony at the suppression hearing tended to show the following facts surrounding Parham's confession. First, and significantly, Parham was well aware at the time of his arrest of the existence of the murder warrant. Secondly, the testimony of both police officers, at least one of whom had extensive drug enforcement experience, indicated that Parham did not appear to be under the influence of drugs. They made inquiry concerning his use of narcotics and did not observe signs of intoxication or illness. During the interrogation, Parham made no mention of smoking marihuana. It was only at the suppression hearing that Parham asserted that the influence of marihuana precluded a knowing...