Com. v. Davis

• Decision Date: 14 December 1988
• Citation: 403 Mass. 575,531 N.E.2d 577
• Parties: COMMONWEALTH v. Arthur DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 577

531 N.E.2d 577

403 Mass. 575

COMMONWEALTH v. Arthur DAVIS.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Oct. 3, 1988.

Decided Dec. 14, 1988.

Brownlow M. Speer, Committee for Public Counsel Services, Boston, for defendant.

Fern L. Nesson, Asst. Dist. Atty., for Com.

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

ABRAMS, Justice.

Convicted of murder in the first degree, the defendant appeals, alleging error in (1) the admission of his statements to the police; (2) the denial of his motion for a required finding; (3) the denial of his request for an instruction on voluntary manslaughter; and (4) the instructions on malice. The defendant asks that we exercise our power under G.L. c. 278, § 33E, and reduce the verdict to manslaughter. We conclude that there is no reversible error, and no substantial likelihood of a miscarriage of justice. Therefore we affirm the conviction. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the evidence in the light most favorable to the Commonwealth. ¹ At approximately 9:30 A.M. on February 10, 1985, the body of the victim was discovered in an outdoor stairwell at Lowell City Hall. The victim was a twenty-three year old married woman who had given birth to a baby nine days earlier. The victim was nude, lying up against a wall in a pool of blood. Her head, thighs, and stomach were covered with blood. There was a large gash in her forehead resulting from a forceful blow with a blunt instrument or caused "by crushing the victim's head against the curbstone" with enough force and torque to split the skin to the bone and tear it away from the bone for about three inches. There was a blow to the back of the head and another on the right side of the head, which caused bruising and hemorrhaging in the brain. The extreme cold (nine or ten degrees Fahrenheit) in which the victim was left also may have contributed to her death. The victim had been struck forcefully across the back with a rodlike instrument and she sustained bruises and scratches consistent with having crawled about while still conscious. She had been dead for several hours.

The Lowell police learned from a person who knew the defendant that the defendant frequented the area of the murder but they were unsuccessful in locating the defendant. On February 12, at approximately 6 P.M., the defendant telephoned the police and told an officer that he had learned that the police were looking for people who had been in the area of the murder. The defendant said he had been there with a Mark Neal and that they had seen a suspicious man in front of City Hall. He said that he and Neal became frightened and fled. The officer asked the defendant if he would come to the station and make a statement, and the defendant agreed.

At the station, the defendant met with an Inspector Guilfoyle. The defendant told Guilfoyle that he was with John Barnes on February 9 and intended to use the pay telephone in front of City Hall. The defendant stated that while using the telephone he observed a suspicious individual whom he described. ² He also described a rod and bag carried by this individual. The defendant then assisted the police in drawing a composite picture of the individual. The defendant looked through the police photographs but did not make an identification. The defendant left the station.

On February 13, Guilfoyle got in touch with Barnes to get a further description of the suspicious individual. Barnes denied he was with the defendant on February 9. Because of discrepancies between Barnes's statement and the defendant's, the police asked both Barnes and the defendant, separately, to come to the police station. The police recited the Miranda warnings and had the defendant read a Miranda card aloud to the police. The defendant said he understood the warnings and signed the card. The officers witnessed the signature. ³

The defendant conferred with Barnes for a few minutes. The defendant then told the police he lied when he said he was with Barnes. ⁴ He said he would now tell the truth, and described approaching the steps of City Hall and seeing a naked, bloody woman there. He placed the time of the murder at 12:30 A.M. The defendant also accurately diagrammed the scene and the position of the body for the police and gave the police a brief personal history. The statement was typed on a victim-witness form, and the defendant read it and signed it.

The officer then asked why the defendant, who said he was a licensed practical nurse, had not tried to help the victim. The defendant changed his story and said he had seen a man trying to have sex with a body. The man saw the defendant and threatened the defendant and the defendant's family if the defendant said anything. The defendant also changed the time of the incident from 12:30 A.M. to 2 A.M. During this interview, the defendant interrupted the officer once to say, "You won't find my fingerprints on her" and three times to say, "The hair won't match mine."

The officer who coordinated the investigation of the murder, Lieutenant LaMothe, took over the interview of the defendant. The Miranda warnings were repeated, and during the course of this interview, the defendant told the police, "I banged her head on the cement." ⁵

1. The defendant's custodial statements. The defendant argues that the judge erred in admitting in evidence the defendant's confession to police officers. He asserts that the interrogating officer used a psychological stratagem to break down "his normal will to protect himself and render[ ] [him] indifferent to protect himself." Commonwealth v. Paszko, 391 Mass. 164, 178, 461 N.E.2d 222 (1984), quoting Pea v. United States, 397 F.2d 627, 634 (D.C.Cir.1967). ⁶ The defendant argues that, because LaMothe used the nickname "Skipper," spoke to the defendant in the third person, and interrogated the defendant as to what Skipper did, the defendant's "will [was] overborne and his capacity for self-determination [was] critically impaired." Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The defendant asserts that "[a] confession made in the third person, attributing criminal acts to an alter ego of the confessor ... bears on its face conclusive indicia of irrationality and the breaking of its maker's will to protect himself." We do not agree.

At the time of the interrogation, the defendant was nineteen years old. He attended school through the tenth grade and thereafter earned a high school equivalency certificate. The defendant was of above average intelligence. The defendant had a history of psychiatric treatment and was diagnosed as suffering from "bipolar disorder, mixed type with underlying strong borderline personality character disorder." ⁷ LaMothe had no knowledge of the defendant's psychiatric history until the conclusion of the interrogation, at which point the defendant informed LaMothe of his prior psychiatric treatment. The judge found that, from February 10 to February 14, the defendant followed his normal daily routine and that he worked full time during that period. The judge found that, between February 10 and February 14, the defendant was not under the influence of or suffering from a major psychotic illness.

The defendant was at the police station approximately nine hours, ⁸ during which time he was given water and tonic, cigarettes, and bathroom privileges, and was offered food, which he refused. He was not fatigued. The judge found that the defendant was not "unduly nervous" and was "coherent and ... unaffected by his surroundings." The judge determined that the defendant was alert and cooperative. The judge found that the statements were not the product of intimidation or coercion.

LaMothe knew from the defendant's mother that the defendant had a nickname, "Skipper." During the interrogation, LaMothe addressed the defendant alternately as Skipper and as Arthur. The defendant told LaMothe that he preferred to be called Arthur. LaMothe showed the defendant the Miranda card he had signed and asked him if he remembered his rights. The defendant replied that he did. LaMothe pointed out to the defendant that he had not asked for a lawyer and had not asked to leave. He asked the defendant why he had not left. LaMothe described all the discrepancies in the stories the defendant had given so far and asked him to explain what had really happened on the night of February 9.

LaMothe asked questions as to what the defendant had done, and what Skipper had done, sometimes speaking of Skipper in the third person. The defendant replied, sometimes referring to himself as Skipper and sometimes using the first person. He also stated that he and Skipper were the same person. He stated that Skipper had taken off the victim's clothes and hit her with his bag. He then said, "I hit her head against the cement."

The defendant described generally what the victim had been wearing, and stated that her underpants had been white and bloody. He accused LaMothe of being "sneaky" in asking about the color of the victim's pants. He said that the police might find Skipper's fingerprints on the victim's shoulders and neck.

At the conclusion of this interview LaMothe asked the defendant if he would dictate and sign a typed statement. The defendant refused and asked to see his mother. At that time, he told LaMothe that he had had psychiatric care in the past. The police called his mother and, when she arrived, told her that they were planning on charging the defendant with murder.

A confession, to be admissible, must be "the product of a free intellect," Townsend v. Sain, 372 U.S. 293, 308, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963), "free and voluntary," Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), "the product of a rational intellect and a free will," Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274,...