Com. v. Benoit

• Decision Date: 01 July 1991
• Citation: 410 Mass. 506,574 N.E.2d 347
• Parties: COMMONWEALTH v. Thomas W. BENOIT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 347

574 N.E.2d 347

410 Mass. 506

COMMONWEALTH v. Thomas W. BENOIT.

Supreme Judicial Court of Massachusetts Barnstable.

Argued May 7, 1991.

Decided July 1, 1991.

J.W. Carney, Jr., for defendant.

Russel J. Wilson, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree for the killing of his wife, Thomas W. Benoit appeals. Benoit argues that he is entitled to a new trial based on a substantial likelihood of a miscarriage of justice because (1) evidence of a telephone call he made to a telephone operator should not have been admitted because his statements were involuntary; (2) testimony from a psychiatrist who performed a competency examination was erroneously admitted in violation of his constitutional right not to incriminate himself; and (3) the medical examiner who testified had not performed the autopsy and therefore should not have been allowed to testify. Benoit alternatively also asks that we exercise our power under G.L. c. 278, § 33E (1990 ed.), to reduce the verdict to murder in the second degree. We affirm. We decline to exercise our power in favor of the defendant.

The jury could have found the facts as follows. At 5:19 A.M. on March 10, 1986, a telephone company operator in Barnstable received a call from a man who said, "Help me. Help me." The operator asked him what kind of help he needed, but the man did not respond to her questions. The operator connected the call to the Barnstable police station and remained on the line. A police officer picked up the call and heard the man on the line say, "Help me, help me. I killed somebody. I killed my wife." The officer asked the man who he was and from where he was calling. The only response was crying and moaning. The telephone operator traced the call and supplied the police with the address which listed that telephone number. Two police officers went to the apartment at that address, arriving at 5:28 A.M. Both doors to the apartment were locked. An officer looked through a window and saw Benoit lying on the floor with the telephone receiver in his hand. The officer kicked the door down. The telephone operator and the officer at the police station were still on the line and heard noises consistent with the breaking down of a door.

When the officers entered the apartment, they found two occupants. Benoit was lying on the floor with the telephone receiver in his hand, bleeding from open wounds on both wrists. He did not respond to questions posed by an officer. His breath smelled of alcohol. Benoit's wife lay dead on the bed. She had been beaten, stabbed five times and was strangled. A bloody steak knife was near her body, and another bloody knife and a partially full bottle of whisky were found in the bathroom.

When the police arrived, all the windows to the apartment were closed and secured. The door that was broken down by the police was locked with a deadbolt, and the keys were in the lock inside the apartment. It had been snowing lightly for approximately an hour, and police did not see any footprints in the snow around the apartment.

While being transported to Cape Cod Hospital, Benoit told the paramedics that he could not see anything, that everything was kind of blurry. In the emergency room, Benoit was able to cooperate with doctors by squeezing his hand and moving his fingers on request. Testing showed the level of alcohol in his blood to be .292. At 7:45 A.M., police officers spoke to Benoit in the emergency room. They advised him of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The police told Benoit he was under arrest for the murder of his wife. Benoit did not respond to the police statements. In the opinion of one of the officers, Benoit did not understand the explanation of his constitutional rights.

At 2:30 P.M., one of the doctors at the hospital examined Benoit. The doctor awakened him and asked him some questions. Benoit responded appropriately to the doctor's questions. In the doctor's opinion, based on Benoit's blood alcohol level at 6:30 A.M. and his appearance at 2:30 P.M., Benoit was intoxicated at the time of his (the doctor's) examination. At 5:20 P.M., police officers again spoke to Benoit. He was awake when they arrived, and his eyes were somewhat glassy. The officers again advised Benoit of the warnings required by Miranda. The police again informed him that he was under arrest for the murder of his wife. He replied, "No, I couldn't have." When asked if he understood his rights, he replied that he did not understand them. His speech was normal; it was not slurred.

At trial, Benoit called only one witness, a psychiatrist, Dr. Yudewitz. Dr. Yudewitz opined that, at the time when Benoit killed his wife, Benoit lacked the capacity to appreciate his acts or to conform his conduct to the requirements of the law, due to a serious mental illness. See Commonwealth v. McHoul, 352 Mass. 544, 546-547, 226 N.E.2d 556 (1967).

1. Benoit's telephone conversation. Benoit claims that the statements he made in the course of his telephone call to the operator were not "voluntary" because he was "irrational" due to mental disease, intoxication, injury, or a combination of all three. Benoit contends that a new trial is necessary because the judge did not rule that the statements were voluntary, and because, in accordance with Massachusetts "humane practice," the judge did not submit the issue of voluntariness of the statement to the jury. We conclude that there is no substantial likelihood of a miscarriage of justice.

Prior to the Commonwealth's opening statement, Benoit moved to suppress the telephone conversation on the grounds that it was recorded and the tape was made without notice to the caller. According to Benoit, the recording of his telephone call violated G.L. c. 272, § 99. Benoit further argued that testimony from the telephone operator and the police officer who participated in the conversation also should be suppressed as fruit of the poisonous tree. At the hearing on the motion, the judge pointedly asked defense counsel if this was his whole theory on the motion to suppress, and counsel replied that it was. The judge ruled that the tape recording was made in violation of G.L. c. 272, § 99, and therefore was inadmissible. ¹ The judge, however, rejected Benoit's argument that the testimony of the participants in the conversation also must be suppressed.

The judge next considered a motion in limine to determine whether the fact that neither the police officers nor the operator could identify the caller's voice as belonging to Benoit led to the conclusion that evidence of the conversation was inadmissible due to lack of authentication. Benoit pointed out that the telephone operator testified at the suppression hearing that she had heard noises suggesting that the caller had put down the telephone, walked away, and then returned. Benoit argued that evidence was insufficient to show that Benoit and his wife were the sole occupants of the apartment at the time the call was made. The judge ruled that the evidence of authenticity was sufficient to admit the testimony of the participants in the conversation.

Defense counsel also objected to any mention of the telephone conversation in the Commonwealth's opening statement. Counsel's objection was that the witnesses would be unable to authenticate the caller's voice, and that the statements were hearsay. The judge reaffirmed her ruling that the statements were adequately authenticated and were admissible as admissions. The judge also ruled that the statements were relevant to Benoit's state of mind, an issue which Benoit raised by his notice of his intention to present an insanity defense.

Benoit's counsel repeated his objection before each of the participants in the conversation testified. In each instance, his grounds were the same: lack of authentication, hearsay, and fruit of the poisonous tree. At no time during the trial did Benoit raise the issue of the voluntariness of the telephone conversation. Benoit did not request a jury instruction requiring the jury to consider the voluntariness of his statements, nor did he object to the jury instructions as given. We thus limit our examination to determine whether the admission of the telephone conversation created a substantial likelihood of a miscarriage of justice. Commonwealth v. Brown, 392 Mass. 632, 636, 467 N.E.2d 188 (1984). Commonwealth v. Tavares, 385 Mass. 140, 149, 430 N.E.2d 1198 cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). Commonwealth v. Brady, 380 Mass. 44, 54, 410 N.E.2d 695 (1980).

A confession (or admission), whether made to police or to a civilian, is admissible only if it is voluntarily made. Commonwealth v. Allen, 395 Mass. 448, 456, 480 N.E.2d 630 (1985). Thus, a statement by someone who "by dint of physical or mental impediments is incapable of withholding the information conveyed" cannot be used as evidence against him. Commonwealth v. Paszko, 391 Mass. 164, 177, 461 N.E.2d 222 (1984). "Statements that are attributable in large measure to a defendant's debilitated condition, such as insanity, see Blackburn v. Alabama, 361 U.S. 199, 207 [80 S.Ct. 274, 280, 4 L.Ed.2d 242] (1960); Commonwealth v. Masskow, 362 Mass. 662, 667-668 (1972) ... intoxication, see Commonwealth v. Hosey, 368 Mass. 571, 577-579 (1975), or 'the concussion of a bullet shattering in his head,' Pea v. United States, 397 F.2d 627, 634 (D.C.Cir.1967), are not the product of a rational intellect or free will and are involuntary." (Citation omitted.) Commonwealth v. Allen, supra 395 Mass. at 455, 480 N.E.2d 630.

If the defendant raises the issue of the voluntariness of his confession, or admission, the trial judge must hold a hearing out of the jury's presence. The judge must determine that the confession or admission was voluntarily given before...