Com. v. Cameron

• Decision Date: 29 March 1982
• Citation: 385 Mass. 660,433 N.E.2d 878
• Parties: COMMONWEALTH v. George Albert CAMERON, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 878

433 N.E.2d 878

385 Mass. 660

COMMONWEALTH v. George Albert CAMERON, Jr.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 7, 1981.

Decided March 29, 1982.

Theodore C. Garabedian, Worcester, for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

On November 22, 1976, the defendant, George Albert Cameron, Jr., was convicted of murder in the second degree on six indictments comprehending murder in the first degree. He was also convicted on two indictments charging arson. On the murder convictions, the defendant was sentenced to six concurrent terms of life imprisonment at the Massachusetts Correctional Institution at Walpole. The judge imposed two sentences of ten to fifteen years on the arson convictions, to be served concurrently with each other from and after the sentences on the murder convictions. The defendant filed a notice of appeal, and we transferred the case to this court on our own motion. ¹

In the early hours of April 2, 1976, a fire destroyed an apartment house in Worcester, killing six people. On April 14, 1976, the defendant was brought to the police station for questioning. During the interview, he signed a statement which admitted, in substance, that he and a friend, Michael Moody, had set the fire.

On appeal, the defendant purports to assert twenty-two assignments of error. Only five issues are properly before the court. The remaining assignments have been either raised for the first time on appeal, with no objection or exception taken at trial, or presented in the defendant's brief with no authority or transcript references. See Commonwealth v. Johnson, 379 Mass. 177, --- - ---, Mass.Adv.Sh. (1979) 2437, 2437-2438, 396 N.E.2d 974 (1979); Commonwealth v. Richard, 377 Mass. 64, 65, 384 N.E.2d 636 (1979). It follows that there is nothing before this court on these claims except the defendant's request that we consider exercising our power under G.L. c. 278, § 33E.

Of the five claims fully before this court, the principal argument is that the defendant did not have the mental capacity to make an intelligent, knowing waiver of his Miranda rights and that the inculpatory statements were involuntary. We disagree.

The following summary of what transpired at the police station is based on the findings of the trial judge made after a hearing on the defendant's oral motion to suppress the inculpatory statements. The evidence at trial was essentially the same as the evidence introduced at the suppression hearing. We note that neither the judge nor the jury accepted the defendant's version of what occurred at the police station. ²

At approximately 10 P.M. on April 14, 1976, a Worcester police officer was sent to the defendant's home to bring him in for questioning. The officer knew only that the defendant might have some information concerning the fire of April 2. The officer was met at the door by the defendant's mother, who invited him in. He asked the defendant if he would come to the station for questioning with respect to the fire. The defendant agreed to go.

At the police station, the defendant was brought into an office in the arson division. Sergeant Dubrule, who knew the defendant and had given him Miranda warnings on previous occasions, informed him of his Miranda rights and his right to a telephone call under G.L. c. 276, § 33A. Dubrule further explained each right after reading it. The sergeant then left the office and returned a short time later with a typewritten copy of the warnings. He again read them to the defendant, who indicated that he understood each right and signed the form. Sergeant Dubrule left, and two other officers questioned the defendant. Prior to questioning, one of the officers again read the Miranda rights to the defendant, who again indicated that he understood his rights but was still willing to talk to the police.

The officers then played a tape of a call from a fire box in which the speaker told the fire department dispatcher to get to the corner of Cambridge and Douglas Streets because "I just lit." After hearing the tape, and prior to any questioning by the police, the defendant identified the voice as his own. After this admission, the officers asked him to relate his activities leading up to the time of the fire. One of the officers took handwritten notes, which the defendant signed at approximately 11:30 P.M. At this time, the defendant was arrested. A typewritten copy of the statement was prepared and given to the defendant to sign. He looked at it for a short time, then informed the officers that he did not read well. One of the officers read the statement to the defendant, who signed it without corrections.

After arraignment, the defendant was committed to Bridgewater State Hospital for psychiatric examination. The examining psychiatrist testified at the suppression hearing that the defendant's I.Q. was 83, representing a composite of a 73 verbal I.Q. and a 98 performance I.Q. The psychiatrist concluded, on the basis of his forty-five minute interview with the defendant, that although the defendant was on the borderline of mental retardation, he had the requisite intelligence to understand fully the nature and the substance of his rights.

The defendant asserts that, because he is mentally deficient, he was incapable of making a knowing and intelligent waiver of his rights without the assistance of his family or a lawyer. He additionally claims that his confession was not voluntary in that the police conduct was inherently coercive.

Where a defendant, without the presence of counsel, makes statements to the police during a custodial interrogation, ³ the State bears a heavy burden of proving that there was a knowing, intelligent, and voluntary waiver of Miranda rights. Commonwealth v. Garcia, 379 Mass. 422, ---, Mass.Adv.Sh. (1980) 21, 27, 399 N.E. 460 (1980). Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Every reasonable presumption against waiver will be indulged. Commonwealth v. Hooks, 375 Mass. 284, 288, 376 N.E.2d 857 (1978). A confession can be voluntary only if the suspect actually understands the impact of each Miranda warning. See Miranda, supra 384 U.S. at 467-476, 86 S.Ct. at 1624-1628; Commonwealth v. Williams, 378 Mass. 217, 225, 391 N.E.2d 1202 (1979). In some circumstances, such understanding may be inferred from a suspect's outward behavior. Commonwealth v. Garcia, supra 379 Mass. at --- - ---, at 27-28, 399 N.E.2d 460. The reviewing court, however, must scrutinize the record with special care when the suspect has a diminished or subnormal mental capacity. Commonwealth v. Daniels, 366 Mass. 601, 606, 321 N.E.2d 822 (1975).

A mentally deficient adult may make an effective waiver of his rights and render a voluntary, knowing, and admissible confession. Id. The court must, however, examine the totality of the circumstances leading up to the waiver, including the characteristics and behavior of the suspect and the details of the interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Commonwealth v. Hooks, 375 Mass. 284, 289, 376 N.E.2d 857 (1978). Circumstances and techniques of custodial interrogation which may pass constitutional muster when applied to a normal adult may not be constitutionally tolerable when applied to one who is mentally deficient. Commonwealth v. Daniels, supra 366 Mass. at 606, 321 N.E.2d 822. See United States v. Blocker, 354 F.Supp. 1195, 1200 (D.D.C.1973).

We have reviewed the evidence presented to the judge at the suppression hearing. We conclude that there was sufficient evidence to warrant the subsidiary facts found by the judge involving the credibility of oral testimony. Commonwealth v. Garcia, 379 Mass. 422, ---, Mass.Adv.Sh. (1980) 21, 26, 399 N.E.2d 460 (1980). We also conclude that the defendant knowingly, voluntarily and intelligently waived his Miranda rights.

The defendant was read his rights three times. During at least one reading, the officer rephrased the rights in simplified language. Each time he did this, he asked the defendant if he understood the rights and received affirmative answers. The atmosphere, at the time the defendant was read his rights, was informal and relaxed: Sergeant Dubrule, who knew the defendant's family, asked how his mother was doing. The defendant had prior contact with the law. The defendant also had some worldly experience in the army. See Commonwealth v. Davis, 380 Mass. 1, ---, Mass.Adv.Sh. (1980) 555, 560, 401 N.E.2d 811 (1980). On this record we cannot say that the defendant's limited intelligence precluded him from making an effective waiver of his rights. ⁴ Nor does the record support the defendant's contention that, when viewed in the totality of the circumstances, the confession was involuntary.

The defendant also argues, for the first time on appeal, that the court-appointed psychiatrist was not qualified, on the basis of one interview with the defendant, to give his opinion on the defendant's ability to waive his rights. We consider this asserted error only to determine whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Garcia, 379 Mass. 422, ---, Mass.Adv.Sh. (1980) 21, 38, 399 N.E.2d 460 (1980). The record clearly indicates that defense counsel wanted this witness to testify on the defendant's capacity to waive his rights. The testimony of the psychiatrist reflects a careful qualification of his opinion and an acknowledgment of the variables which could affect the opinion. Such evidence satisfies the requirements of Commonwealth v. Daniels, 366 Mass. 601, 609, 321 N.E.2d 822 (1975). ⁵

The defendant contends that his motions for directed verdict, made at the close of the Commonwealth's case and at the close of the evidence, were improperly denied. ⁶ He grounds this argument solely on...