Com. v. Brady

• Decision Date: 05 March 1980
• Citation: 410 N.E.2d 695,380 Mass. 44
• Parties: COMMONWEALTH v. David J. BRADY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 695

410 N.E.2d 695

380 Mass. 44

COMMONWEALTH v. David J. BRADY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 6, 1979.

Decided March 5, 1980.

J. Russell Hodgdon, Boston, for defendant.

Robert M. Raciti, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant David J. Brady was convicted of murder in the first degree in connection with the death of a three year old child and was sentenced to life imprisonment. The defendant's pro se petition for writ of error, alleging the failure of his trial counsel to file a claim of appeal as requested or to inform him of pro se appellate procedures, was stayed pending a hearing on a motion for a new trial filed by a court-appointed attorney in the Superior Court. The motion for a new trial raised the issue set forth in the original petition for writ of error and additional issues relating to the admission of the defendant's inculpatory statements at trial and the effectiveness of trial counsel. That motion was denied, and the defendant now appeals. He contends that the trial judge committed error in failing to conduct sua sponte a voir dire of certain witnesses who testified concerning statements made to them by the defendant at a time when, according to the defendant, he was unable to make voluntary declarations because he was intoxicated and suffering from a "head injury." The defendant also complains of the judge's failure to rule on the voluntariness of the confessions after voir dire testimony of two policemen and his failure to submit the issue to the jury sua sponte. In the alternative, the defendant claims he was denied effective assistance of counsel by reason of trial counsel's failure to request voir dire hearings, rulings of law, and jury instructions concerning his confessions, and by his counsel's failure to call as witnesses certain persons who were present at the time of the defendant's arrest and detention. Finally, the defendant urges us to exercise our powers under G. L. c. 278, § 33E, to grant him a new trial or to mitigate the degree of guilt.

We conclude that the evidence elicited at trial on the questions of the defendant's intoxication and "head injury" was not sufficient to require the trial judge to inquire sua sponte as to the voluntariness of the defendant's inculpatory statements; that the judge's admission of the defendant's confessions after nonconflicting voir dire testimony constituted a clear determination of their voluntariness; that even if we assumed the voir dire examinations were deficient in the evidence taken or the rulings made, the determination at the posttrial hearing that the defendant's statements were voluntarily given cured any purported defects; that the judge had no obligation to instruct the jury concerning the possible involuntariness of the defendant's statements where trial counsel had apparently abandoned the issue, requested no instructions on the subject, and raised no objections or exceptions to the charge; that trial counsel's omissions were tactical decisions that did not constitute ineffective assistance of counsel; and that the defendant is entitled to no relief under G. L. c. 278, § 33E. Accordingly, we affirm the conviction. In doing so, we observe that the overriding factor relating to all issues raised in this appeal is the defense counsel's trial tactic of stressing alibi. This strategy, especially obvious in the defendant's detailed alibi testimony, required an approach which was inconsistent with a claim of involuntariness of admissions by reason of intoxication.

We briefly summarize the events leading to the defendant's arrest. We then turn to the testimony elicited at trial with regard to the issue of voluntariness. Additional facts may be found in the context of our discussion of the various arguments raised by the defendant. ¹

During the evening of June 29, 1969, the defendant telephoned several people, including his father, his former wife, and a priest, and he related seemingly conflicting stories. He reported to these persons both that he had killed "somebody" and that he had found "a body" in his room. The defendant's father notified Stoneham police, who then found the body of a three year old girl on a closet shelf in a boarding-house room rented to the defendant. The victim had died of asphyxiation in the late morning of June 29. She had been sexually assaulted. The defendant was arrested in the early morning of June 30 while in the company of two priests.

At the trial the defendant's ex-wife, his father, and four police officers were allowed to testify as to declarations made to them by the defendant during the evening and early morning of June 29 and 30. When two of the four policemen were asked to relate the defendant's statements, defense counsel requested and was granted a voir dire. From one officer, counsel elicited the observation that the defendant "had been drinking" but was "not drunk" although he "may have been (under the influence of liquor)." The witness also indicated that the defendant did not complain about a laceration received in a barroom dispute. At the conclusion of the voir dire, the judge said, "All right," and the jury were returned to the court room. When the officer was asked to recount the defendant's statements, defense counsel objected but, when asked on what grounds, he withdrew the objection. Thereafter, the witness testified that while he was fingerprinting the defendant the defendant blurted out that he was "going to Walpole for twenty years" and that he did not "remember doing it." On voir dire examination of the other officer, counsel was unsuccessful in his effort to controvert the officer's assessment that the defendant had been drinking but was not drunk. After the voir dire, defense counsel stated that he assumed the court would "rule that everything was in proper order." The judge replied that counsel could object to questions as they were asked. Counsel did not object, however, and the officer testified that on the way to the police station, the defendant stated, "I killed her. She was bugging me. I don't know why, but I killed her."

When the defendant's former wife, his father, and the two other police officers were asked to relate the defendant's statements, defense counsel neither requested voir dire nor objected to the admission of the statements. The defendant's attorney did question the defendant's father as to his son's drinking habits and interrogated the other witnesses on the level of the defendant's sobriety at the time of his statements to them. The defendant's former wife stated that she "presume(d)" the defendant was drunk when he telephoned her to say that he had murdered someone because "(t)o say something like that, he had to be out of his head." The witness observed further that the defendant was drunk "most of the time." The defendant's father testified that when the defendant talked with him on the telephone, "there was something wrong with him," as if he were "under the influence of liquor or something." The father also stated that he saw the defendant at the police station at 7:30 A.M. on June 30 and that the defendant "was raving and . . . marked up with blood and had a very bad cut on his head." The two other police officers corroborated previous testimony that at the time of his arrest and statements to the police the defendant had been drinking but was not drunk and had understood the Miranda warnings read to him. In addition, one officer testified that he and several other policemen finally convinced the defendant that he needed medical attention for the cut over his eye and then escorted him to a hospital.

The defendant's testimony set forth details establishing an alibi and bolstering the theory that someone else had use his room and killed the child there. His account itemized his considerable consumption of alcohol and drugs over a period from early morning on Saturday, June 28, to midnight on Sunday, June 29, a period of approximately forty hours.

1. Voluntary nature of the confessions. It is well established that due process is violated when a conviction is based, in whole or in part, upon an involuntary confession. E. g., Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964). The United States Supreme Court has required a hearing out of the jury's presence to determine the issue of voluntariness whenever a defendant raises that issue. Id. at 391-394, 84 S.Ct. at 1788-1790. Not only must a trial judge conclude that a confession was freely and voluntarily given before he allows the jury to hear it, but his "conclusion that the confession is voluntary must appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639 643, 17 L.Ed.2d 593 (1967). However, if the defendant fails to raise the voluntariness question, the hearing prescribed by Jackson v. Denno, supra, is not constitutionally mandated. Wainwright v. Sykes, 433 U.S. 72, 86, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). A sua sponte obligation on the part of a trial judge has been recognized by this court in Commonwealth v. Harris, 371 Mass. 462, 469-472, 358 N.E.2d 982 (1976). Harris set forth the requirement that, where evidence of "a substantial claim of involuntariness" is produced, a trial judge must conduct a voir dire on the question of voluntariness even though no such request has been made by defense counsel. Id. at 470, 358 N.E.2d 982. See Commonwealth v. Masskow, 362 Mass. 662, 667-668, 290 N.E.2d 154 (1972) (disclosure of evidence of insanity). In addition, Massachusetts practice dictates that a judge make a ruling on the voluntariness of the confession and instruct a jury that they may reconsider the issue of voluntariness should the confession be admitted. Commonwealth v. Harris, supra, 371 Mass. at 469-470, 358 N.E.2d 982.

This court has...