Com. v. Callahan

• Decision Date: 08 February 1988
• Citation: 519 N.E.2d 245,401 Mass. 627
• Parties: COMMONWEALTH v. Joseph N. CALLAHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 245

519 N.E.2d 245

401 Mass. 627

COMMONWEALTH v. Joseph N. CALLAHAN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 5, 1987.

Decided Feb. 8, 1988.

Fred Hewitt Smith (Cynthia Smith, Medford, with him), for defendant.

Philip T. Beauchesne, Asst. Dist. Atty. (Margaret Steen Melville, Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ. ABRAMS, Justice.

Convicted of murder in the first degree, ¹ the defendant, Joseph N. Callahan, appeals alleging error in the denial of his motion to suppress statements he made to the police, error in the instructions to the jurors, ² and ineffective assistance of counsel. In addition, pursuant to G.L. c. 278, § 33E (1986 ed.), he alleges that there is a substantial likelihood of a miscarriage of justice because (a) the juror selection process is prejudicial; (b) his sentence violates the equal protection principles of the Fourteenth Amendment to the Constitution of the United States and art. 10 of the Massachusetts Declaration of Rights; and (c) the practices and procedures of the Commonwealth violate the establishment of religion clause of the First Amendment to the Constitution of the United States. Finally, the defendant asserts that the cumulative effect of all the errors he argues creates a substantial likelihood of a miscarriage of justice and that we should either order the entry of a verdict of a lesser degree of guilt or grant a new trial. We affirm the conviction. We conclude that there is no reason to exercise our power under G.L. c. 278, § 33E, to order a new trial or entry of a verdict of a lesser degree of guilt.

1. Denial of the motion to suppress. The defendant alleges error in the denial of his motion to suppress a statement made to the police officers at the scene. He claims he was subjected to "custodial interrogation" prior to being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also alleges that the judge's conclusion that the statement was voluntary is erroneous. We conclude there is no merit to either contention.

After hearing, the judge made the following findings of fact. As a result of a radio call, two police officers went to a residential structure at 64 Danny Road, Hyde Park. The defendant was standing in the doorway at that address. When he saw the officers, the defendant said, "Follow me." As the three men were proceeding to an upper floor in the building, the defendant said, "She's shot. You'd better get an ambulance." The three men then entered a bedroom. The victim was on the bed, and "from her appearance, [one of the officer's] thought she might well be dead." After checking the victim's vital signs, the officer asked, "What happened?" The defendant replied, "She was going to throw me out, and so I shot her." The defendant then was arrested and the warnings required by the Miranda case were recited. The defendant acknowledged his apparent understanding of each of the warnings. ³

The judge found that the defendant's conduct was appropriate, and that he was responsive to questions and to the circumstances in which he found himself. He appeared calm and rational. He did not appear "deeply depressed in a lay sense of that phrase." The judge found that the defendant appeared sober with reference to the use of alcohol or chemical agents. The judge determined that the defendant's conduct had the appearance of rationality. He concluded that the interrogation was noncustodial and that the statement was freely and voluntarily made.

Miranda warnings are only necessary for "custodial interrogations." Commonwealth v. Bryant, 390 Mass. 729, 736, 459 N.E.2d 792 (1984). The judge could conclude that the defendant was not in custody when the police asked, "What happened?" This simple question, posed to the defendant by the police on discovery of a dead body, "was a proper preliminary inquiry not requiring Miranda warnings." Commonwealth v. Podlaski, 377 Mass. 339, 343, 385 N.E.2d 1379 (1979). It was directed to discovering generally what the defendant knew about the circumstances of the victim's death. See id.; Commonwealth v. Borodine, 371 Mass. 1, 4-5, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Commonwealth v. Doyle, 12 Mass.App.Ct. 786, 793-794, 429 N.E.2d 346 (1981). Suspicion had not focused on the defendant, and the questioning was neither aggressive nor overbearing. Commonwealth v. Podlaski, supra. See Commonwealth v. Bryant, supra 390 Mass. at 738-739, 459 N.E.2d 792. The fact that the police probably would not have allowed the defendant to leave until he talked to them does not by itself make the situation custodial. See id.; Commonwealth v. Podlaski, supra. Thus, there was no error in the judge's determination that the defendant was not in custody when the police asked him, "What happened?" ⁴

The evidence found credible by the judge also supports his conclusion that the defendant's statement was voluntary and the product of a rational mind. Testimony was given that the defendant appeared calm and rational, responsive to his surroundings and to the officers, and did not appear to be under the influence of alcohol or chemical agents. "We will not lightly disturb a judge's determination which is supported by evidence in the record and which is also based on an assessment of the witnesses before him." Commonwealth v. Wilborne, 382 Mass. 241, 252, 415 N.E.2d 192 (1981). See Commonwealth v. Perry, 389 Mass. 464, 466, 450 N.E.2d 615 (1983); Commonwealth v. Sellon, 380 Mass. 220, 226, 402 N.E.2d 1329 (1980). There is nothing in this record which would require us to disturb the judge's subsidiary findings and his ultimate conclusions.

The defendant contends that the judge was required to reconsider psychiatric testimony, offered later in the trial, in determining whether the admission was the product of a rational mind. We disagree. At the hearing, the judge's attention was drawn to transcripts of testimony given by psychiatrists at the defendant's prior two trials. At least two of these psychiatrists were the same experts who later testified in this trial. Based on all the evidence presented at the hearing, the judge could determine that the defendant's admission was freely and voluntarily made and was the product of a rational intellect. ⁵

2. Jury instructions. The defendant assigns four errors in the jury instructions: (a) failure to give a requested instruction on voluntary manslaughter; (b) failure to give an instruction on involuntary manslaughter; (c) shift of the burden of proof on the issues of premeditation and malice; and (d) use of the words "insanity" and "responsibility" with regard to the McHoul test of lack of substantial capacity. In assessing the charge, we are mindful that "the adequacy of instructions must be determined in light of their overall impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232, 402 N.E.2d 1329 (1980). Moreover, because the requested instruction on voluntary manslaughter was the only claim raised at trial, we review the other three pursuant to G.L. c. 278, § 33E, solely to determine whether there was a likelihood of a miscarriage of justice. E.g., Commonwealth v. Prendergast, 385 Mass. 625, 634, 433 N.E.2d 438 (1982). After reviewing the charge as a whole, we conclude that no instruction on voluntary manslaughter was required, and that the other instructions do not create a substantial likelihood of a miscarriage of justice.

a. Voluntary manslaughter. The defendant requested an instruction that "[a] person is guilty of voluntary manslaughter if he commits the act of killing another by reason of a sudden transport of passion or heat of blood which is provoked by a mental disease or mental defect; alcohol or drugs; or any combination of mental disease, mental defect, alcohol and/or [sic ] drugs." The instruction does not accurately reflect the law in Massachusetts. "Voluntary manslaughter is 'a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.' " Commonwealth v. Zukoski, 370 Mass. 23, 28, 345 N.E.2d 690 (1976), quoting Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491 (1931). "Insults and quarreling alone cannot provide a reasonable provocation." Zukoski, supra 370 Mass. at 28, 345 N.E.2d 690. The evidence reveals that the defendant and the victim argued over money the previous afternoon. The defendant admitted to the police, "She was going to throw me out, and so I shot her." This evidence does not support a claim that there was reasonable provocation for killing the victim. No charge to the jury on voluntary manslaughter was required.

b. Involuntary manslaughter. No instruction on involuntary manslaughter was warranted because no jury rationally could have found that the shooting was unintentional, wanton, or reckless. See, e.g., Commonwealth v. Walden, 380 Mass. 724, 730, 405 N.E.2d 939 (1980); Commonwealth v. Santo, 375 Mass. 299, 306, 376 N.E.2d 866 (1978); Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833 (1975). The victim was shot three times in the head with a gun found in the bedroom. The gun barrel was bloodied, and a hair was caught between the barrel and the slide. The gun was wrapped in a towel, apparently to muffle the noise of the discharge. ⁶ Powder burns, gunshot holes, and human hairs were found in the towel. On no view of the evidence could a jury find that the three bullets were discharged into the victim's head unintentionally. ⁷ See Commonwealth v. LeBlanc, 373 Mass. 478, 491, 367 N.E.2d 846 (1977).

c. Burden of proof. The judge repeatedly instructed the jury that the Commonwealth bore the burden of proving every element of the crime of murder in the first degree beyond a reasonable doubt. Contrary to the defendant's argument, the judge's instruction that premeditation "may...