Com. v. Johnson

• Decision Date: 23 April 1975
• Citation: 3 Mass.App.Ct. 226,326 N.E.2d 355
• Parties: COMMONWEALTH v. Homer JOHNSON, Jr.
• Court: Appeals Court of Massachusetts

Page 355

326 N.E.2d 355

3 Mass.App.Ct. 226

COMMONWEALTH v. Homer JOHNSON, Jr.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 11, 1974.

Decided April 23, 1975.

Calvin J. Wier, Boston, for defendant.

D. Lloyd Macdonald, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and ROSE, KEVILLE, GRANT and ARMSTRONG, JJ.

ARMSTRONG, Justice.

The defendant was convicted of murder in the second degree for the killing of one Matt Mayes on the morning of March 24, 1973. Police, called to the scene in the Roxbury district of Boston, found Mayes on the front landing of his house, bleeding from the chest. Several persons were there, including Mayes' wife; someone directed the police to the defendant's residence just around the corner. ¹ There, were drops of blood leading from Mayes' front landing to the defendant's apartment, where the police found the defendant, noticed that he was bleeding from his right hand, arrested him for the murder (by stabbing) of Mayes, informed him of his Miranda rights, and asked him if he had the murder knife, which he denied. At the police station, in the presence of a stenographer, the defendant was again given the Miranda warnings and was then interrogated for approximately ten minutes. He admitted stabbing Mayes in a fight instigated by Mayes, who attacked the defendant with a knife, and witnessed (the defendant said) by several persons whom he named, including Mayes' wife and the defendant's brother-in-law. The defendant said that he did not know where he got the knife with which he stabbed Mayes. He surmised that one of the eyewitnesses might have given it to him or that he might have succeeded in taking Mayes' knife during the combat. The defendant denied being under the influence of drugs or alcohol, and appeared to the police to be in full possession of his faculties, although upset and remorseful about the killing. He did not sign a written statement.

By Monday, March 26, the date scheduled for arraignment, the defendant's behavior had become hostile and marked by violent outbursts. On recommendation of a court clinic psychiatrist, the defendant was committed to the Bridgewater State Hospital for observation to determine his competency to stand trial and his criminal responsibility. See G.L. c. 123 § 15(b), as in effect prior to St.1973, c. 5698 §§ 5 and 6. He was determined to be competent to stand trial.

The Commonwealth's case was brief. Two police officers described what they had observed at the scene of the crime and the arrest of the defendant. A psychiatrist from the Bridgewater State Hospital was permitted to testify concerning the mental condition of the defendant, apparently for the purpose of establishing the voluntariness of the statement made by the defendant at the police station. The police officer who had interrogated the defendant then introduced the statement. The Commonwealth then rested. ²

This appeal (taken under G.L. c. 278 § 33B) raises three issues: (1) the admissibility of the psychiatrist's opinion before the jury, (2) the admissibility of the defendant's statement at the police station, and (3) the denial of the defendant's motion, at the close of the Commonwealth's case, for a directed verdict as to so much of the indictment as charged murder in the second degree.

1. The psychiatrist examined the defendant on April 10, 1973, and on the basis of that examination and results of various tests performed by others, testified that on April 10 the defendant, although of borderline intelligence (I.Q. 73), did not exhibit mental illness or disturbance and appeared to understand the nature of his acts and of the criminal proceedings in which he was involved. The psychiatrist specifically declined, however to draw any inference or express any opinion concerning the mental condition of the defendant on March 24 (when the homicide occurred and the defendant made his statement at the police station) or March 26 (when the arraignment was postponed). Nevertheless, the opinion was relevant and properly admitted, for evidenc of the defendant's competency on April 10, if accepted, makes his competency on March 24 'more probable than it would be without the evidence.' McCormick, Evidence, § 185, p. 437 (2d ed. 1972).

2. The defendant argues that, although the Miranda warnings, as set out in the margin, ³ were given before he made his statement at the police station, the record does not demonstrate knowing and intelligent waiver by him of his rights. He argues from the following passage in Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966): 'An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.' And again, at 475, 86 S.Ct. at 1628: 'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.'

The defendant points out that he was never asked, in so many words, 'Do you wish to have a lawyer present?' or 'Do you wish to answer questions without having a laywer present?' The defendant concedes, as he must, that the Miranda case does not require that those questions be asked. The warnings the defendant was given have been held sufficient on many occasions. See n. 3. Rather, the defendant argues that by such questions the Commonwealth might have demonstrated a waiver of rights, and that by failing to ask such questions the most that the Commonwealth can be said to have demonstrated is an understanding (but not a waiver) of rights.

The contention is forcefully and skillfully presented, and, if this were a case of first impression, we would have difficulty in reconciling the facts of this case with the language quoted from the Miranda case. But a long line of cases in various Federal Courts of Appeal appears to have established a working rule that, if the record demonstrates that a defendant has been clearly and accurately told of the Miranda rights and that he has affirmatively acknowledged his understanding of those rights, a knowing and intelligent waiver of those rights may be inferred, in circumstances not otherwise casting doubt on voluntary waiver, ⁴ from his proceeding to answer questions without asking for a lawyer. The leading case appears to be United States v. Montos, 421 F.2d 215, 223--224 (5th Cir. 1970), cert. den. 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). Other cases applying the rule are United States v. Lamia, 429 F.2d 373, 375--377 (2d Cir. 1970), cert. den. 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970); United States v. Guzman-Guzman, 488 F.2d 965, 966--967 (5th Cir. 1974); United States v. Ganter, 436 F.2d 364, 369--371 (7th Cir. 1970); Hughes v. Swenson, 452 F.2d 866, 867--868 (8th Cir. 1971); United States v. Hilliker, 436 F.2d 101, 102--103 (9th Cir. 1970), cert. den. 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); United States v. Moreno-Lopez, 466 F.2d 1205 (9th Cir. 1972); United States v. Johnson, 474 F.2d 6 (9th Cir. 1973); and Bond v. United States, 397 F.2d 162, 164--165 (10th Cir. 1968), cert. den. 393 U.S. 1035, 89 S.Ct. 652, 21 L.Ed.2d 579 (1969). See also Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651, 654--655 (1969), cert. den. 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676 (1970), and United States v. Stuckey, 441 F.2d 1104, 1105 (3d Cir. 1971), cert. den. 404 U.S. 841, 92 S.Ct. 136, 30 L.Ed.2d 76 (1971). The rule has been applied in this Commonwealth, most recently in Commonwealth v Roy, --- Mass.App. ---, --- - ---, ^a 307 N.E.2d 851 (1974), which controls on the facts of the present case.

The knowing and willing quality of the defendant's waiver and the voluntariness of his statement are not cast in substantial doubt by his borderline intelligence (which appears to have been greater than that of the defendants in COMMONWEALTH V. WHITE, --- MASS. ---, 285 N.E.2D 110 (1972)^B, and Commonwealth v. Daniels, --- Mass. ---, --- - ---, ^c 321 N.E.2d 822 (1975)), or by his suggestion that he felt dizzy, as if he had been drugged; there was substantial evidence, in the testimony of the psychiatrist, in the testimony of the police officer who conducted the interrogation, and in the transcript of that interrogation, that the defendant had the capacity to understand and did in fact understand what was transpiring and what was being said to him.

3. The defendant's next contention is that the trial judge erred in denying his motion, at the close of the Commonwealth's case, for a directed verdict as to so much of the indictment as charged murder in the second degree. His argument is that the Commonwealth's entire case rested on the defendant's police station statement and that statement makes out at best a case of manslaughter. In the highly unusual circumstances of this case, a majority of the panel agree with the defendant's contention, for the following reasons. ⁵

The characteristic distinction between murder and manslaughter is malice. Commonwealth v. Webster, 5 Cush. 295, 304 (1850). Malice may ordinarily be inferred from the intentional use of a deadly weapon. Commonwealth v. Jones, --- Mass. ---, ---, ^d 323 N.E.2d 726 (1975); Commonwealth v. Boyd, --- Mass. ---, ---, ^e 326 N.E.2d 320 (1975); Commonwealth v. York, 9 Metc. 93 (1845), established that when the Commonwealth has proved intentional homicide beyond a reasonable doubt, the burden is upon the defendant to show by a preponderance of the evidence that the circumstances in which the killing occurred preclude malice, unless the circumstances of palliation or mitigation appear from the Commonwealth's evidence. See Commonwealth v. Webster, supra, 5 Cush. at 305. Where testimony is adduced which shows...