Com. v. Davis

• Decision Date: 04 March 1980
• Parties: COMMONWEALTH v. Delmont F. DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 811

401 N.E.2d 811

380 Mass. 1

COMMONWEALTH v. Delmont F. DAVIS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 6, 1979.

Decided March 4, 1980.

John C. McBride, Everett, for defendant.

Robert M. Raciti, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

About 8 p. m., March 20, 1974, the defendant entered Sam's Variety Store on Salem Street in Medford. Present were Nathan Cohen, the proprietor, and Marie Morelli, a customer. The defendant, armed, said, "This is a holdup, I want all the money." Instantly Cohen took a revolver from under the counter, behind which he was standing, and fired. The defendant returned the fire, then fled, shattering the glass of the front door. ¹ In the exchange, Morelli had been shot in the head. She was pronounced dead at 9:40 p. m. that evening. The bullet that struck Morelli was not recovered. But sufficient evidence was introduced at trial to warrant the jury in concluding that it was the defendant who fired the fatal shot. ²

On April 9, 1974, in a two and a half hour meeting with Medford police and others, the defendant admitted he was the robber. This interview occurred in the Auburn County jail in Lewiston, Maine, where the defendant was being held on unrelated charges. On being brought back to Medford the following day, the defendant participated in a lineup and was identified by Cohen and another witness. He spoke again with the police on May 5, 1974, again making inculpatory statements, and on May 9 he testified before a grand jury, describing his involvement in the holdup. Subsequently he was indicted for murder (comprehending murder in the first degree), assault with a dangerous weapon with intent to murder, assault with a dangerous weapon with intent to rob, and use of a motor vehicle (the getaway car) without authority.

Before trial the defendant moved to suppress the three statements above mentioned as well as evidence of the lineup identifications. The motion was denied on June 27, 1975. At trial the defendant on December 13, 1975, was found guilty of murder in the second degree (the judge's instructions having also encompassed the first degree) and of the other offenses charged; he was sentenced to life imprisonment on the murder conviction with concurrent sentences of twelve to twenty years on the assaults, the motor use charge being filed by consent. He appealed under the provisions of G.L. c. 278, §§ 33A-33H. (Legislation of 1979 affecting those sections, particularly § 33E, will be discussed below.) He claims error in the denial of his motion to suppress and in the subsequent admission of the relevant evidence at trial. Other trial errors are alleged to which we shall also come.

1. Pretrial Waiver. As will appear, on the three occasions on which the defendant made statements, he was advised of his constitutional rights and indicated that he understood and waived them and was willing to speak. The defendant's claim, however, is that, having limited intelligence, he never actually understood those rights, so that his waiver should be held ineffective as in essence involuntary, and the statements should be rendered inadmissible accordingly.

The Commonwealth bears the burden of demonstrating that the defendant waived his rights "voluntarily, knowingly and intelligently" (Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); see Commonwealth v. Hosey, 368 Mass. 571, 574, 334 N.E.2d 44 (1975)) every reasonable presumption being indulged against a waiver. See Commonwealth v. Hooks, --- Mass.[380 Mass. 4] ---, --- ^a, 376 N.E.2d 857 (1978); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). We are to consider "the totality of all the surrounding circumstances both the characteristics of the accused and the details of the interrogation" in reaching a judgment. Commonwealth v. Daniels, 366 Mass. 601, 606, 321 N.E.2d 822, 827 (1975), quoting from Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). In the present case we are assisted by the detailed findings of the motion judge after nine days and 1,314 transcript pages of hearings (unnecessarily extended by futilely repetitious interrogation by defense counsel). We accept the judge's subsidiary findings as well supported; his conclusions are entitled to respect, but they do not bind us and we submit them to our independent judgment. See Commonwealth v. Murphy, 362 Mass. 542, 550-551, 289 N.E.2d 571 (1972) (concurring opinion of Hennessey, J.); Commonwealth v. Jones, --- Mass. ---, --- - --- ^b, 377 N.E.2d 903 (1978). ³

(a) Statement of April 9, 1974. The defendant was then thirty years old. He had an I.Q. of seventy-nine. The normal range is between ninety and 109. Although he had attended school to the eighth grade, he was illiterate, but was able to write his name. All this is agreed. ⁴

Medford police Lieutenant John Keating and his partner, Sergeant Patrick Carr, the principal questioners of the defendant, first encountered him at the Auburn jail about 6 p. m. that day. Keating said he had a warrant for the defendant's arrest for the murder on March 20 of Marie Morelli. Next, Keating read the defendant the Miranda rights from a printed card and asked if he understood them. The defendant said as to each right that he did. He answered affirmatively to the question whether he wanted to talk to the officers. Keating asked the defendant to read and sign the Miranda card; when the defendant indicated he could not read, Keating read from the card again, and the defendant then signed it and said he wanted to talk about the holdup at Sam's to "get this thing off my chest."

In response to questions, the defendant recounted the episode of March 20. He told how he and three other men (Michael Barrett, Kenneth Larkin, and William Paskell) decided to rob Sam's store. The defendant was the one who entered the store and announced the holdup. He did not draw and fire his gun until Cohen had fired at him. He thought he had not struck Morelli because he heard his shot hit the cans behind the counter. He remembered seeing Morelli standing as he left the store. ⁵ He told also of his flight to Maine.

The interview was taped; in addition, the police wrote down the answers to the questions and read them back to the defendant to ensure accuracy. At the close of the interview, the written responses were read to the defendant again, and he signed each page on which they appeared. ⁶ Testifying at the suppression hearing, the defendant himself said that he was told three or four times during the session that he could stop the questioning at will; he also acknowledged that he had put questions to Keating about his constitutional rights before answering the officers' questions. ⁷ Contrast Commonwealth v. Daniels, 366 Mass. 601, 608, 321 N.E.2d 822 (1975). There is no hint of the use of any of the techniques of interrogation criticized in the Miranda case. Miranda v. Arizona, supra 384 U.S. at 445-448, 86 S.Ct. at 1612-1614. Contrast Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948 (1961); Ashcraft v. Tennessee, 322 U.S. 143, 153, 64 S.Ct. 921, 925, 88 L.Ed. 1192 (1944); United States v. Hull, 441 F.2d 308, 313 (7th Cir. 1971).

The motion judge hearing the tapes described the interview as logical and orderly, free of hostility, coercion, or threats. Perhaps more significantly for the present purpose, he found the defendant's answers "responsive, clear, lucid, and ready. His voice was soft, calm, composed and void of any agitation or emotion. No remark or response of Davis . . . is found to be confused, incoherent; but rather his conversation is found intelligent and rational." Dr. William Shelton, a psychiatrist called to testify about the defendant's competency to stand trial, said under questioning by the judge that during his meeting with the defendant he found him communicative and possessed of a "reasonable degree of rational understanding." An effective waiver was not precluded by the defendant's limited education and intellectual ability. Commonwealth v. Daniels, supra at 606, 321 N.E.2d 822, and cases cited. ⁸ Compare Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960); United States v. Hull, 441 F.2d 308, 309 (7th Cir. 1971). We note here that the defendant had had years of worldly experience, including several encounters with the law in which he had four or five times been given Miranda warnings. Undoubtedly he recognized the seriousness of his situation.

The motion judge, who had the benefit of seeing and hearing the defendant testify, concluded that the defendant's waiver was knowing and his statement voluntary. We agree. ⁹

(b) Statements of May 5 and May 9, 1974. We skip for the moment the lineup of April 10, 1974. On May 5, Keating and Carr, in response to a telephone call from the defendant, visited him at the Plymouth House of Correction. A prison official told the defendant he was not obliged to speak to the officers but the defendant said he wanted to do so. At that point Miranda rights were carefully given and the defendant signed a Miranda card. The defendant said (without any prior suggestion) that he wanted to go before the grand jury because he believed he had not fired the effective bullet. He said he now remembered more of the incident and proceeded to amplify his April 9 statement with some details in themselves having a tendency to palliate his offense by linking Cohen to the fatal shot. ¹⁰

On May 9, the defendant in fact appeared before a Middlesex County grand jury. The prosecutor gave the defendant Miranda warnings as he took the stand. Then the defendant told his story. The grand jury indicted.

Like the statement of April 9, the May statements were not coerced, but the question of the defendant's cognitive ability recurs and the judge's answer...