Com. v. Cobb

• Citation: 373 N.E.2d 1145,374 Mass. 514
• Decision Date: 01 March 1978
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1145

373 N.E.2d 1145

374 Mass. 514

COMMONWEALTH v. Vernon G. COBB.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 2, 1977.

Decided March 1, 1978.

Joseph Sax, Eric A. Nissen, Boston, for defendant.

Alice Richmond, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

LIACOS, Justice.

The defendant appeals under G.L. c. 278, §§ 33A-33G, from a conviction of murder in the second degree after a jury trial on an indictment for murder in the first degree. The defendant has filed numerous assignments of error, only three of which need be discussed in view of our determination that the judgment of conviction must be reversed, the jury verdict set aside, and a new trial ordered.

The defendant was indicted for murder in the first degree of William Petrosh, the operator of a small grocery store in Boston. On the morning of August 23, 1975, Petrosh had been working in his store and his sixteen year old son had been working in the back room of the store. On hearing a shot and his father's scream, the son ran to the front of the store where he found his father fatally wounded. The son had not seen his father's assailant. No witnesses to the shooting were produced at trial. Only one witness, a taxicab driver, was able to supply a description of the events leading up to and immediately following the shooting.

The driver testified that he had picked up two black male passengers; one was of light complexion; the other was of dark complexion, had a "scarry" face and chipped teeth. After driving around for ten or fifteen minutes and making one stop, the passengers told the driver to proceed to the corner of Parker Street and Delle Avenue, the location of the grocery store. On arriving at the store, the dark-complexioned passenger entered the store. The driver testified that after a minute or two he heard a shot and a man's scream, and immediately thereafter the passenger ran out of the store, got into the taxicab, and ordered the driver at gunpoint to leave the area. After dropping off his passengers, the driver reported the incident to his dispatcher and was instructed to drive to a police station. At the station, the driver looked at 300 to 400 photographs but was unable to make an identification. Several days later, the driver was shown eight to ten more photographs, but was still unable to identify either of his passengers. Later that day he was shown eight more photographs and made an identification of the defendant as the dark-skinned, "scarry" faced passenger with chipped teeth who had entered the store just before the shot was heard.

Based on this identification, the police began a search for the defendant. After failing to find him at his mother's apartment, the police proceeded to the apartment of the defendant's father where the defendant was found, fully clothed, in the bathroom behind the shower curtain. The police arrested the defendant, handcuffed him and read from their "Miranda card," see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After some discussion, which will be described fully below, the defendant was taken to a police station.

1. As a preliminary matter, we consider the defendant's assignment of error based on the trial judge's refusal to direct a verdict for the defendant at the close of all the evidence. We find no error.

The jury reasonably could have concluded that the taxicab passenger described by the driver as having a dark complexion, a "scarry" face and chipped teeth was the person who shot the decedent. The driver had an extended opportunity to view his passenger's face, and made a positive identification of that passenger based on examination of large numbers of photographs shown to him by the police in a manner that was not attacked as suggestive or unfair. The driver also identified the defendant at trial as being the passenger in question. The jury reasonably could have concluded that the defendant was the person who entered the grocery store just before the shooting and ran out of the store just after the shooting brandishing a gun. These circumstances, even without the support of other evidence which we need not recount, warranted a belief beyond reasonable doubt that the defendant had shot the decedent. See Commonwealth v. Belton, 352 Mass. 263, 225 N.E.2d 53 (1967).

2. The assignment of error that we find decisive as to the disposition of this appeal involves certain testimony as well as argument by the prosecutor regarding the discussions between the defendant and the police immediately after his arrest in his father's apartment and at the police station. As related previously, the police arrested the defendant at his father's apartment based on the taxicab driver's photographic identification. At the trial, the prosecutor called the arresting officer to the stand and inquired as to the events at the apartment. After eliciting testimony regarding the discovery of the defendant behind the shower curtain in the bathroom, the arrest and handcuffing of the defendant, and the reading of the Miranda rights, the following colloquy took place between the prosecutor and the arresting officer: The prosecutor: "When you read him his constitutional rights did you ask him any question?" The officer: "Yes." The prosecutor: "What did you ask him?" The officer: "Where is the gun?" The prosecutor: "And what did he say?" The officer: "He said, 'What can I say?' " At this point counsel for the defendant objected and moved to strike the questions and answers. The objection was overruled, the motion was denied and an exception was taken. The prosecutor then backtracked and again asked the witness if the defendant had made any statement after he had been placed under arrest. Over the renewed objections of the defendant's counsel, the arresting officer testified that the defendant had responded by saying, "I have nothing to say."

The officer than testified that the defendant was taken to the police station where he was again advised of his Miranda rights. The prosecutor asked if any questions had been directed at the defendant after he had indicated that he understood what had been read to him from the Miranda card. The defendant's counsel objected, was overruled, and took an exception. The witness answered: "We asked where was the gun and his accomplice." The prosecutor asked what was said next. After another round of objection and exception, the witness was allowed to testify that the defendant responded: "What can I say?"

The prosecutor, in her closing argument to the jury, emphasized the defendant's failure to respond to the questions of the police officers. She described the interchanges between the police and the defendant as follows: "(The arresting officer) (p)laces him under arrest gives him the old Miranda rights. 'I have nothing to say,' says the defendant. Well, that, of course, is his constitutional right. . . . They book him and give him his Miranda rights again. And at that point he is asked, 'Where is the gun? Tell us who your accomplice was.' And he says, 'What can I say? What can I say?' "

We note at the outset that the statements attributed to the defendant were made after the defendant had been arrested and handcuffed. The questioning by the police therefore must be viewed as "custodial interrogation." Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). See Commonwealth v. Borodine, --- Mass. ---, --- - --- ^a, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Commonwealth v. Simpson, 370 Mass. ---, --- ^b, 345 N.E.2d 899 (1976); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam); Beckwith v. United States, 425 U.S. 341, 346-348, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). Thus, even if the defendant's response "What can I say?" were to be characterized as an "equivocal" reply or an adoptive admission and not as an attempt to assert his constitutional right to remain silent, see Commonwealth v. Burke, 339 Mass. 521, 532, 159 N.E.2d 856 (1959), the evidentiary rule allowing the admission of such statements would not be applicable unless there had been a finding by the judge that the defendant had validly waived his right to remain silent. The waiver must have been made voluntarily, knowingly, and intelligently. Commonwealth v. Hosey, 368 Mass. 571, 573-574, 334 N.E.2d 44 (1975). Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Moreover, the prosecution carries a heavy burden of proof to demonstrate that a valid waiver was made. Commonwealth v. Borodine, supra, --- Mass. at --- ^c, 353 N.E.2d 649. Commonwealth v. Hosey, supra, 368 Mass. at 576-577, 334 N.E.2d 44. Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602.

The trial transcript reveals that in the instant case a voir dire on this critical issue was not held; nor was any finding of a waiver made by the judge. Cf. Commonwealth v. Harris, --- Mass. ---, --- - --- ^d, 358 N.E.2d 982 (1976) (trial judge must conduct voir dire in absence of jury where voluntariness of allegedly coerced confession is in issue, and must make affirmative finding of voluntariness before the jury are allowed to consider it). ¹ It is clear that the prosecution failed to meet its burden and that the testimony of the police officer regarding the responses of the defendant to custodial police interrogations, as well as the questions themselves, were improperly admitted. We note that the testimony of the arresting police officer reveals no attempt on his part to ascertain whether the defendant was desirous of and capable of validly waiving his rights. To the contrary, the response "What can I say?" appears to us to have far more likely indicated an intention to invoke the right to remain silent than an intention to waive that right. This...