Com. v. O'Brian

• Decision Date: 10 January 2006
• Citation: 840 N.E.2d 500,445 Mass. 720
• Parties: COMMONWEALTH v. Patrick D. O'BRIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 500

840 N.E.2d 500

445 Mass. 720

COMMONWEALTH v. Patrick D. O'BRIAN.

Supreme Judicial Court of Massachusetts.

Worcester.

Argued November 10, 2005.

Decided January 10, 2006.

Michael Malkovich, Northampton, for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, & SPINA, JJ.

IRELAND, J.

The defendant was charged with the murder of a Worcester nightclub manager, the armed robbery of the nightclub's assistant manager, assault and battery of the assistant manager by means of a dangerous weapon, armed assault with intent to rob (two indictments), intimidation to steal from a depository (two indictments), breaking and entering at nighttime with intent to commit a felony, possession of a sawed-off shotgun, and possession of ammunition without a firearms identification card. In 2002, a Superior Court jury convicted the defendant of all charges except assault and battery of the assistant manager by means of a dangerous weapon. He received concurrent life sentences for the convictions of felony-murder,¹ possession of a sawed-off shotgun, armed robbery, and the intimidation of the assistant manager in order to steal from a depository. In addition, he received concurrent sentences of from eighteen to twenty years for armed assault of the victim and the assistant manager with intent to rob, and for breaking and entering. The judge filed the conviction of possession of ammunition without a firearms identification card, the defendant not objecting.

On appeal, the defendant claims that the trial judge erred in admitting in evidence the defendant's statement to the police and in various instructions to the jury. In addition, he asks that we grant him a new trial or reduce the murder verdict to murder in the second degree. See G.L. c. 278, § 33E. Because we find no error that warrants a reversal of the defendant's convictions and see no reason to exercise our power pursuant to G.L. c. 278, § 33E, we affirm the defendant's convictions.

Facts and procedural background. We recite the facts the jury were warranted in finding, reserving certain details for our discussion of the issues raised.

On May 28, 2000, at approximately 1 A.M., the defendant was being driven home by his father from police custody and "was already planning to do the robbery" at the Worcester nightclub which he had "cas[ed]" and thought about doing for "a couple of months." On that day, the defendant had long "bright yellow" hair. Although the defendant had taken approximately thirty Klonopin pills at approximately 1 A.M. on May 27, 2000, he subsequently had been in police custody for nine to ten hours before his father arrived to drive him home. At home, he went to bed, pretended to sleep, and waited for his father to go to sleep. Sometime before 3:30 A.M. on May 28, 2000, he donned a hat, a bandana (to hide his face), a painter's suit, a turtleneck shirt (to cover his tattoo), and black boots. He took a pistol-grip sawed-off shotgun and black canvas bag that contained gloves, a radio, wire ties, a knife, and duct tape. He walked from his house to the nightclub, a distance of approximately 1.2 miles. When he got near the building's back door, while in some nearby brush, he loaded the shotgun and, in the process, dropped a shell. He walked into the building through an unlocked door, made a loop inside to see if anyone was around, and then went down some stairs to where the office was located. The victim and the assistant manager were in the office.

Moments after entering the office, the defendant shot the victim and then leaned over him, screaming his name and demanding that he open the safe. When the defendant did not receive a comprehensible response,² he turned to the assistant manager and demanded the combination, which she did not know. He took the assistant manager's handbag and her car keys. He asked her what kind of car she drove, its color, and where it was parked. He then stole the vehicle, a Jeep Cherokee, and drove it to a street near his house. He abandoned the vehicle and walked to another nearby street; he took all his clothes off except his underwear and threw them into a catch basin. He also threw everything else he had, including the shotgun, the purse, and the keys, into the basin.

The defendant then walked home. He searched through his house looking for his mother's medications. He found them and took them all. His father found him unconscious, with his eyes open, at approximately 7 A.M. on May 28, 2000. The defendant was rushed to a hospital.

In the meantime, the nightclub assistant manager had telephoned 911. She was not able to identify the perpetrator because he had a bandana over his face. The victim died of a shotgun wound to the chest. At trial, counsel stipulated that the shot was fired at close range.

The police recovered all items the defendant disposed of, as well as the Jeep, in the course of their investigation.³ The police also recovered a shell casing in the office, and shells on the stairs leading to the office and outside in the brush. After the police found the vehicle and items in the catch basin, they suspected that the defendant was involved. He was arrested on a default warrant (unrelated to the murder) at his house on June 6, 2000. On the day of his arrest, he had short brown hair (instead of long yellow hair) and denied any involvement in the homicide to Worcester detectives. The defendant remained in jail, and the police continued their investigation.⁴

On June 9, 2000, a Worcester detective contacted the defendant's father and asked him to come to the station to give a statement concerning the defendant's whereabouts on the morning of the murder. After taking the statement, the detective told the father that the defendant was the prime suspect in the homicide because the police had found the stolen Jeep and items in a catch basin near the defendant's house. The father also was told that a witness had seen someone matching the defendant's description running up the front stairs to his house at approximately 4 A.M. on the morning of the murder. The detective also told the father that the shooting could have been an accident. He testified that he told the father that because the assistant manager had said that the shooter asked the victim for the combination to the safe only after the victim was mortally wounded and lying on the floor, the detective thought this sequence of events made no logical sense.⁵ The detective also stated that if the defendant cooperated and told the truth, including whether others were involved, he would communicate that to the district attorney and the defendant "may see the light of day down the road."

The next day, the father related this conversation to the defendant, who asked his father to have the police speak to him. Later that evening, the defendant met with two detectives who took his statement, which contained most of the information discussed supra.

The defendant filed a motion to suppress his statement to the police, which was denied. At trial, over objection, a redacted version of the statement was read to the jury and counsel stipulated that the defendant was not under the influence of alcohol or drugs at the time he gave his confession. The defendant did not testify at trial. His defenses were that the shooting was an accident, and his expert testified that due to various mental disorders stemming from emotional and sexual abuse in his childhood, he was incapable of forming the requisite intent to commit the crimes. He also claimed that his statement to the police was not voluntary.

Discussion. 1. Miranda waiver and voluntariness issues. The defendant argues that the Commonwealth did not meet its burden to prove, beyond a reasonable doubt, that the defendant's waiver of his Miranda rights and his subsequent confession were voluntary. He argues, among other things, that he confessed only after a detective told his father that he (the detective) thought the shooting was an accident and that the defendant would receive some leniency if he confessed.

"The Commonwealth bears the burden of proving beyond a reasonable doubt, in the totality of the circumstances, that a defendant's [Miranda] waiver was voluntary, knowing and intelligent, and that his statements were voluntary." Commonwealth v. Auclair, 444 Mass. 348, 353, 828 N.E.2d 471 (2005), citing Commonwealth v. Jackson, 432 Mass. 82, 85-86, 731 N.E.2d 1066 (2000). "Absent clear error, we accept a motion judge's findings of fact ... and a finding of voluntary waiver is given substantial deference" (citations omitted). Commonwealth v. Auclair, supra. In looking at the totality of the circumstances to determine the voluntariness of a statement, the judge may consider, among other things, "promises or other inducements, ... the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation." Commonwealth v. Magee, 423 Mass. 381, 388, 668 N.E.2d 339 (1996), quoting Commonwealth v. Selby, 420 Mass. 656, 663, 651 N.E.2d 843 (1995).

"An officer may suggest broadly that it would be better for a suspect to tell the truth, may indicate that the person's cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past. What is prohibited, if a confession is to stand, is an assurance, express or implied, that it will aid the defense or result in a lesser sentence." (Footnotes omitted.) Commonwealth v. Meehan, 377 Mass. 552, 564, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980). See Commonwealth v. Jordan, 439 Mass. 47, 53, 785 N.E.2d 368 (2003), citing Commonwealth v. Meehan, supra at 564, 387 N.E.2d 527 ("The touchstone is whether the police `assured' the defendant that his confession would aid his defense...