Com. v. Atkins

• Decision Date: 24 June 1982
• Citation: 386 Mass. 593,436 N.E.2d 1203
• Parties: COMMONWEALTH v. Nathaniel ATKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1203

436 N.E.2d 1203

386 Mass. 593

COMMONWEALTH v. Nathaniel ATKINS.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 4, 1982.

Decided June 24, 1982.

Robert L. Sheketoff, Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

Before us is an appeal from two convictions of murder in the first degree. The defendant was convicted by a jury on January 27, 1981. He was sentenced to consecutive terms of life imprisonment. The defendant argues numerous errors, based mainly on the judge's instructions to the jury. Finding neither error nor an occasion to exercise our powers under G.L. c. 278, § 33E, we affirm.

There was evidence before the jury of the following facts. On May 1, 1980, the bodies of Kathalyn Davidson and William Coleman were discovered in the basement apartment which the two shared at 10 Beals Street in Brookline. Both victims had been strangled, and, in addition, Coleman had been stabbed repeatedly. The estimated time of death was set by the medical examiner at Tuesday, April 29, but the actual time could have been as much as forty-eight hours earlier.

Acting on information provided by an informant, State police investigators, in conjunction with Brookline and Boston police, attempted to interview certain of the victims' friends and acquaintances. Among these was the defendant, whom the police were unable to locate until some months later, after he had been indicted for the murders.

The principal witness for the Commonwealth was Linda Mueller. She testified that she had once lived with the defendant. In April of 1980 she was working as a prostitute. Early on Monday, April 28, shortly after 2 a. m., the defendant came to see Mueller at her apartment. He was driving an orange Chevette automobile registered to another woman. The defendant and Mueller drove to Beals Street in Brookline. The defendant rang the doorbell of the victims' apartment, and Ms. Davidson answered. Davidson was acquainted with both Mueller and the defendant and let them in. As they entered, the defendant asked Davidson if "Billy" was at home, a reference to Coleman. She replied that he was in another room sleeping. Davidson, Mueller, and the defendant sat in the living room conversing. Approximately one-half hour later, the defendant entered the room where Coleman was sleeping, which was a combination kitchen-bedroom. Shortly thereafter, as the two women sat in the living room, they heard sounds of struggle. Davidson screamed, and Mueller cautioned her to be quiet "so she wouldn't get hurt." Coleman was heard moaning for what seemed like one-half hour. ¹ The defendant came back to the living room, handed Mueller a knife, and told her to go into the other room and stab Coleman. She pretended to stab Coleman, who was lying on the floor, moaning and bleeding. The defendant then twisted a belt around Coleman's neck and told Mueller to hold it, threatening to leave "three bodies instead of two" if she did not. ² Mueller did as she was told and held the belt for a few minutes. After this time, Coleman made no further sound. Mueller and the defendant then returned to the living room. The defendant then began choking Davidson, using his arm first, and then his belt. During this time he instructed Mueller to watch Davidson's face for signs of life, and commented that "it's taking her a long time to die." ³ When Davidson was dead, the defendant went about the apartment and wiped off the doorway and ash trays, as well as some glasses he had used. Shortly before leaving, he took material from a closet and tied a garrote around each victim's neck. Mueller and the defendant left the apartment between 6:30 and 7 a. m. and drove away. ⁴

On May 1 the defendant called Mueller and told her the bodies had been found. That night they left Boston, staying first in Rhode Island and then in New York City. After a few days they returned to Boston. When the defendant learned that police had been to his house looking for him, he moved to Worcester. ⁵ When he learned, via newspaper, that he had been indicted by a grand jury for the crimes, he left by bus for California.

The bulk of the defendant's claims of error center on various aspects of the charge to the jury. With these, and with all the assignments of error, we have made a division into two categories: those based on objections made at trial, and those argued for the first time on appeal. With regard to this latter category, we limit our review to the question whether the challenged action created a substantial risk of a miscarriage of justice. G.L. c. 278, § 33E. Commonwealth v. Porter, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2275, 2284, 429 N.E.2d 14. Commonwealth v. Williams, 378 Mass. 217, 227-228, 391 N.E.2d 1202 (1979). We treat the former category first.

Admissibility of the defendant's tape-recorded statement. On July 11, 1980, while he was in custody and just after he had been returned to Massachusetts from California, the defendant gave a tape-recorded statement to the assistant district attorney who was to prosecute the case. This recording was eventually played for the jury at trial, after a voir dire on its admissibility. The three witnesses at the voir dire were Mr. Robert W. Banks, the prosecutor, Joseph Brooks, a State police officer assigned to the Norfolk County district attorney's office, and the defendant. The defendant had surrendered himself to California authorities in late June, 1980. He waived rendition at a hearing at which he was represented by appointed counsel. Mr. Banks and Officer Brooks visited the defendant in Oakland City jail on July 9, at which time they gave him Miranda warnings. He made no statement at that time, and they did not see him again for another two days, when they picked him up to return him by air to Boston. The defendant was again given Miranda warnings and indicated that he did not wish to make a statement. Both Mr. Banks and Officer Brooks testified that they did not interrogate the defendant during the flight. Both testified that about one-half hour before the aircraft arrived in Boston, the defendant requested to speak with Mr. Banks. This conversation was deferred until after the party arrived at the State police facility at Logan Airport.

The defendant claimed that, during the flight, Officer Brooks tried to persuade him to talk about the case by mentioning the possibilities of his receiving the death penalty and of his fiancEee being charged as an accessory after the fact. ⁶ He claimed that he was given an alcoholic drink and had had very little sleep for a few days prior to the trip. The defendant admitted that he understood his rights as given and that he could think and make decisions. He nonetheless characterized his act of giving a statement as one done "(w)illingly, understandingly under duress" because of the conduct of Officer Brooks. The record does not show that the defendant requested counsel at any time prior to giving his statement. Prior to making his statement, the defendant was allowed to make a phone call.

In the statement itself, the defendant admitted both that he was with Mueller between 2 and 6 a. m. on April 28 and that he was driving his fiancEee's Chevette automobile. He also corroborated much of the Commonwealth's evidence as to his movements after that date. He insisted, however, that the last time he had seen either victim was a week prior to their death.

At the conclusion of the voir dire hearing, the judge ruled that the defendant, "while in possession of all his faculties, knowingly, willingly and voluntarily waived his rights under Miranda v. Arizona." He found that the defendant was provided with these warnings on at least three occasions. The judge also ruled that the defendant was in full possession of all his faculties and that no coercion of any type was exercised on him. In reaching this latter conclusion, he resolved the conflicting testimony concerning the existence of coercion in favor of the Commonwealth. This conclusion was clearly warranted by the evidence, and we see no reason to disturb it. See Commonwealth v. Tavares, 385 Mass. 140, 144-145, 430 N.E.2d 1198 (1982), and cases cited; Commonwealth v. Williams, supra at 226, 391 N.E.2d 1202. From this, it follows that the statement, obtained some time after the defendant had exercised his right to silence in California, was admissible. The inquiry in such circumstances is whether the person's right to be free from interrogation, once exercised, was "scrupulously honored" before questioning resumed. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). See Commonwealth v. Brant, 380 Mass. 876, --- - ---, Mass.Adv.Sh. (1980) 1473, 1480-1481, 406 N.E.2d 1021. Nothing in the record indicates a persistent effort by police to wear down the resistance of a person in custody who has cut off questioning. ⁷ Compare Commonwealth v. Jackson, 377 Mass. 319, 327 n.7, 386 N.E.2d 15 (1979). Thus we conclude that his right to silence was "scrupulously honored." Furthermore, we believe the judge correctly concluded that the Commonwealth had sustained its burden of showing a knowing, intelligent, and voluntary waiver. Indeed, there is little here to suggest the absence of waiver. See Commonwealth v. Williams, supra at 226-227, 391 N.E.2d 1202. ⁸

Exclusion of evidence of prior misconduct by Mueller. In conjunction with defense attempts to impeach the credibility of Mueller, she was cross-examined extensively as to promises made to her by the district attorney's office. Among these were promises of protection and of a new identity. She denied, however, that she had been promised help in connection with any criminal charges pending against her. At a bench conference, defense counsel alleged that he possessed evidence that Mueller had stabbed a man in Rhode Island and that Massachusetts authorities had...