Com. v. James

• Decision Date: 21 April 1998
• Citation: 693 N.E.2d 148,427 Mass. 312
• Parties: COMMONWEALTH v. Steven JAMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 148

693 N.E.2d 148

427 Mass. 312

COMMONWEALTH v. Steven JAMES.

Supreme Judicial Court of Massachusetts Plymouth.

April 21, 1998.

Argued Feb. 3, 1998.

Decided April 21, 1998.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Michael J. Traft, Boston, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and IRELAND, JJ.

ABRAMS, Justice.

The defendant, Steven James, appeals from his conviction of murder in the first degree by reason of extreme atrocity or cruelty. ¹ He argues that the evidence was insufficient to support the jury's verdict of murder in the first degree based on extreme atrocity or cruelty, that a videotaped confession should have been suppressed, and that the judge made certain errors in the jury instructions pertaining to mental impairment. We affirm the conviction and decline to exercise our power under G.L. c. 278, § 33E, to reduce the verdict to a lesser degree of guilt or order a new trial.

We summarize the facts, viewing the evidence in the light most favorable to the Commonwealth and reserving certain facts for discussion of the relevant issues. See Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). The defendant and some friends were in the parking lot of a sandwich shop in Rockland. Some distance away, near a van belonging to the victim, an argument had begun between the victim and Steven DiRenzo, another friend of the defendant. The victim took a baseball bat out of his van and used it to fend off DiRenzo, but did not actually swing it. At this point, DiRenzo called to the defendant. The defendant and several friends ran toward the van and began taunting the victim, who continued to use the bat. The victim fell, dropped the bat, and lay motionless on his stomach. While six or seven people kept hitting and kicking the victim, he asked them to stop and made no attempt to fight back. The defendant picked up the bat and swung it three times at the victim's head, crushing his skull and lacerating his brain. Each blow would have been sufficient to kill him. The victim, unconscious, was taken to a hospital, where he died two days later as a result of his head injuries.

1. Evidence of extreme atrocity or cruelty. The defendant argues that the evidence was insufficient to support a determination of extreme atrocity or cruelty. We reject this contention. ² The evidence supported a jury's determination that several of the Cunneen factors were present. See Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983). The victim asked his assailants to stop hitting him, yet the defendant struck him with the bat. This shows indifference to or pleasure in the victim's suffering. See id. Each blow was of sufficient force to kill the victim, yet the defendant struck three blows. This shows a disproportion between the means needed to cause death and those employed. See id. The jury were clearly warranted in concluding that three skull-crushing blows with a baseball bat constituted extreme atrocity or cruelty. See id. (factors include manner and force of blows, number of blows, instrument employed).

2. Videotaped statement. The defendant voluntarily surrendered himself to the police. A police officer took him to a conference room, where he was read the Miranda warnings. The defendant indicated that he understood them. He also assented to videotaping the interrogation. After the videotape equipment was set up, the police officer asked the defendant if he wanted to "make a statement." The defendant said, "Nope." The officer then asked him whether he wanted to talk about what happened. The defendant agreed to, and the interrogation proceeded. The defendant argues that the videotape, which was admitted in evidence and played for the jury, should have been suppressed because (1) by asking further questions after he indicated he did not want to make a statement, the police failed to "scrupulously honor" his right to remain silent and (2) in light of his youth and inexperience, his statements were not voluntary. We reject both contentions.

On review of a motion to suppress, we do not disturb the judge's findings of fact unless they are clearly erroneous. Commonwealth v. Magee, 423 Mass. 381, 384, 668 N.E.2d 339 (1996). However, we independently review the application of constitutional principles to the facts. Id. A defendant who has waived the Miranda warnings still retains the right to cut off interrogation but must indicate to the police that he or she is invoking the warning previously waived. Commonwealth v. Bradshaw, 385 Mass. 244, 264-265, 431 N.E.2d 880 (1982). To terminate questioning, "there must be either an expressed unwillingness to continue or an affirmative request for an attorney." Commonwealth v. Pennellatore, 392 Mass. 382, 387, 467 N.E.2d 820 (1984). Once the defendant invokes his or her right to terminate questioning, that right must be "scrupulously honored." Id. at 386, 467 N.E.2d 820, quoting Commonwealth v. Brant, 380 Mass. 876, 882, 406 N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980).

In ruling on the defendant's motion, the judge found as a fact that by saying, "Nope," the defendant meant only that he did not wish to make a formal statement and not that he was unwilling to answer questions. We cannot say this determination was clearly erroneous. Immediately before and after that point, the defendant appears to have been quite willing to talk. The judge was warranted in concluding that the defendant did not suddenly change his mind about discussing the incident, but had no prepared speech.

By declining to make a formal statement, the defendant neither terminated questioning nor invoked his right to remain silent. Cf. Commonwealth v. Selby, 420 Mass. 656, 661, 651 N.E.2d 843 (1995) (defendant's statement that he had nothing to add before shutting off tape recorder was not an invocation of right to remain silent). Thus, the police did nothing wrong by asking whether he wanted to discuss the incident.

"In determining whether a statement was made voluntarily, in compliance with due process of law, we examine whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.... Under this 'totality of the circumstances' test, we consider all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant." (Citations omitted.) Commonwealth v. Selby, supra at 662-663, 651 N.E.2d 843. The defendant argues that, because he was seventeen years old and inexperienced with the criminal justice system, the statement should have been deemed involuntary. Age and inexperience are two factors among many for the judge to consider. See id. The judge's findings of fact reveal that he did consider these factors as well as the defendant's conduct during the interrogation, the police officer's conduct, and the tenor of the interview. Further, our review of the transcript of the videotape and watching the videotape itself discloses no coercive tactics by the police or unwillingness on the defendant's part to cooperate. We conclude that the statements were voluntary and the videotape properly admitted.

3. Mental impairment. The defendant has a history of mental impairment. He has been diagnosed as having an impulse control disorder, for which he has been taking medication. His doctor testified that under current diagnostic criteria, she would conclude that he has intermittent explosive disorder. This disorder is characterized by inability to control aggressive impulses, reactions out of proportion to provocative stimuli, and discrete aggressive episodes of short duration. Such a disorder could impair the defendant's capacity to premeditate, to act with extreme cruelty, or to act with malice. The Commonwealth's expert, however, said that the defendant's actions were the result of a conduct disorder rather than a mental illness that would impair these capacities.

a. The defendant argues that the judge's instructions did not adequately address the impact of mental impairment on extreme atrocity or cruelty. Because he did not raise this issue at trial, we review for a substantial likelihood of a miscarriage of justice. The judge instructed the jury that they should consider the defendant's mental state when evaluating the evidence on the Cunneen factors and that mental impairment...