Com. v. Brown

• Decision Date: 07 August 1984
• Citation: 392 Mass. 632,467 N.E.2d 188
• Parties: COMMONWEALTH v. Gordon BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 188

467 N.E.2d 188

392 Mass. 632

COMMONWEALTH v. Gordon BROWN.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 5, 1984.

Decided Aug. 7, 1984.

Patricia A. Kennelly, Boston (Robert L. Sheketoff, Boston, with her), for defendant.

Ellen M. Bane, Asst. Dist. Atty., for the Commonwealth.

Willie J. Davis, Boston, amicus curiae, submitted a brief.

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

NOLAN, Justice.

Edward Paulson was killed on September 9, 1976, in an apartment in Cambridge. The defendant was found guilty of murder in the first degree by a jury on December 17, 1982. We have reviewed the entire record and find no reversible error which requires a new trial. However, in the interest of justice, we exercise our power under G.L. c. 278, § 33E, and we direct the entry of a verdict of murder in the second degree for reasons which we set out later in this opinion.

In 1976, Edward Paulson, the victim, was twenty-eight years old and a college student. His brother, Richard Paulson, was then twenty years old. In early 1976, the victim learned that the defendant sold hashish, and communicated with him. The victim and Richard met the defendant outside Symphony Hall in Boston and bought one pound of hashish for $900. Sometime later, a second transaction took place in the defendant's apartment in Cambridge; again, the victim made the arrangements and was accompanied by Richard. They purchased one pound of marihuana from the defendant. The relationship among the three was friendly.

For the next meeting, the defendant initiated the telephone call to the victim on September 8, 1976, and told the victim that he had a "good deal" for him, one kilogram (2.2 pounds) of hashish for $1,600. This sounded like an attractive offer to the victim because hashish generally was being sold for $900 a pound. The victim suggested making the purchase on September 10, but the defendant protested that the deal had to be consummated "right away," the next day at his apartment in Cambridge. The victim acquiesced. Richard collected $1,600 in cash from several friends who would share the hashish with him. It was 9:15 p.m. on September 9, 1976, when the victim and Richard arrived at the defendant's apartment. Richard carried a box which contained $1,600 and a scale. The defendant responded to the door bell and directed the brothers to his living room. Unlike the earlier friendly demeanor which he had exhibited, the defendant seemed "[v]ery nervous, very shaky, just not at ease at all." He was "like a totally different person." The defendant said that the hashish supplier had not arrived. He invited the brothers to wait in his living room while he went to the store to buy some beer. The brothers declined this invitation because they were uncomfortable and felt that "something was not right." They left and, on their way downstairs, passed a man and a woman coming upstairs (later identified as Anthony Martin and Meredith Weiss). When the brothers reached the street, Richard looked up to the defendant's living room window and saw the defendant talking with Martin and Weiss. Richard went back up to the defendant's apartment and asked the defendant whether Martin was the drug supplier. The defendant said no.

After returning to their car, the victim and Richard drove around for approximately fifteen minutes and then returned to the defendant's apartment. Again, Richard carried the box containing the scale and the money. On arriving at the apartment door, the defendant ordered them into a bedroom. Richard sat on the bed and the victim stood nearby. The defendant "was still very, very nervous." He turned on some music and announced that he had to go to see his landlord. It appeared that the defendant quickly left the apartment through a kitchen door. The brothers felt "uncomfortable" and decided to leave but, within seconds of the defendant's departure, Martin entered the bedroom from an adjacent room.

Martin pointed a .38 caliber gun at the brothers and said, "Down on the floor. Where's the money?" The victim raised his hands and said, "Wait a minute." Martin shot him in the chest from a distance of no more than five feet. Martin then turned to Richard and demanded, "Where's the money?" Though it was in the box on the bed next to him, Richard told Martin that it was in the car. Martin left through the same door that the defendant had used. Within hours of the shooting, the victim died from the gun shot wound.

Weiss was Martin's girl friend and lived with him in Somerville. Despite Martin's insistence that Weiss allow him to use her mother's car alone that night, she drove the car. During the ride to Cambridge, Martin told her that he and the defendant were going to meet two men to whom they were selling drugs. He told her that he had a gun "to make things go more smoothly." While she, Martin, and the defendant were in the defendant's living room, Martin asked her to wait in the car. She did so, and, while waiting, she heard a sound like a shot. Within minutes, the defendant got into the back seat; Martin entered the front seat next to her. The defendant and Martin were upset during the ride to a friend's home in a nearby city, where they stayed for two days. Weiss then drove them to a bus terminal in New York City. On the way the gun was thrown into the Mystic River. On Weiss's return to Boston, she was indicted as an accessory after the fact to the murder. She testified under a promise not to prosecute.

Martin and the defendant went to Los Angeles and stayed briefly with Martin's cousin. The defendant then lived abroad until 1982, when he returned to his hometown, Englewood, New Jersey. He was arrested in Englewood on May 13, 1982, and was brought back to Massachusetts for trial.

In an interrogation after his arrest in Englewood, the defendant admitted that he had arranged a drug deal with the brothers and that he and Martin were going "to rip the guys off." He said that when the brothers arrived at his apartment, Weiss left the apartment while Martin remained. After the defendant heard a shot, Martin came to him and told him that he had shot the victim.

The issues argued by the defendant may be divided as follows: ¹ (1) the trial judge's findings concerning the voluntariness of defendant's statement to the arresting police; (2) the judge's failure to instruct the jury on three specific issues; (3) the denial of the motion for directed verdict; (4) the prosecutor's closing argument; and (5) review under G.L. c. 278, § 33E.

1. Findings and Instructions Concerning the Voluntariness of the Defendant's Statement.

The defendant challenges, for the first time on appeal, the judge's failure to find that the defendant's statement to the Englewood police was voluntary "beyond a reasonable doubt." ² Similarly, the defendant asserts error in the judge's failure to charge the jury that they also must find the defendant's statement was voluntary "beyond a reasonable doubt" before considering the substance of that statement. Because the defendant failed to object at trial to either matter, we shall review them solely to determine whether there was error and if so whether there exists a substantial risk of a miscarriage of justice. Commonwealth v. Brady, 380 Mass. 44, 54, 410 N.E.2d 695 (1980). ³

In support of his argument that the requisite standard of proof was not applied, the defendant cites our decision in Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). The defendant's statement of the substantive law is correct: prior to placing any confession or admission before a jury, a trial judge is compelled to make inquiry concerning its voluntariness at a voir dire before the jury are allowed to consider it, if voluntariness is a live issue at trial. Id. 385 Mass. at 151, 430 N.E.2d 1198. The Commonwealth must demonstrate beyond reasonable doubt that the statement it seeks to introduce was voluntarily made. Commonwealth v. Tavares, supra at 152, 430 N.E.2d 1198.

We are mindful that conclusions as to voluntariness "must appear from the record with unmistakable clarity." Commonwealth v. Tavares, supra at 152, 430 N.E.2d 1198, quoting Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967). However, we are inclined to agree with the Commonwealth's argument that in this case the defendant seeks "to elevate form over substance." The omission of the specific words "beyond a reasonable doubt" from the judge's findings is not a conclusive indication that the standard of proof was not met. Although we urge judges to incorporate this standard expressly within the findings, we cannot say that the omission here was error. The judge's findings concerning voluntariness were made with explicit reference to Commonwealth v. Tavares, supra. Hence the standard of that decision is implicitly incorporated within them. Where failure to make findings alone would not constitute reversible error, the absence of precise language concerning the standard of proof does not require reversal, particularly where there is every indication that the correct standard was applied. See Commonwealth v. Brady, 380 Mass. 44, 52, 410 N.E.2d 695 (1980).

Further, the testimony at the voir dire hearing overwhelmingly indicated voluntariness; the defendant acknowledged having been advised of his Miranda rights, and admitted speaking freely with the Englewood police. Although the defendant's testimony differed from that of the police officers regarding the time at which he signed the Miranda waiver form, and although he denied making certain statements to which the police testified, and although he stated that he felt he was "obligated" to sign the form, this without more is insufficient to require a finding of involuntariness. The judge's conclusion concerning voluntariness is further supported by evidence that the defendant knew one of...