Com. v. Luna

• Citation: 641 N.E.2d 1050,418 Mass. 749
• Parties: COMMONWEALTH v. Carlos A. LUNA.
• Decision Date: 08 November 1994
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1050

641 N.E.2d 1050

418 Mass. 749

COMMONWEALTH v. Carlos A. LUNA.

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted Sept. 8, 1994.

Decided Nov. 8, 1994.

Willie J. Davis, Boston (Marie Elena Saccoccio, Cambridge, with him), for defendant.

R. Michael Cassidy, Asst. Atty. Gen., for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendant, Carlos A. Luna, appeals from his convictions in the Superior Court of perjury and filing false police reports and from the denial of his motion for a new trial. We transferred the case here on our own motion, and we now affirm the judgments and the denial of the motion for a new trial.

In February, 1988, the defendant, a Boston police officer, applied for a warrant to search the premises of an apartment in the Dorchester section of Boston. In the search warrant application, the defendant indicated that a specific informant had supplied him with information about drug dealing at the Dorchester apartment. The defendant's partner, Detective Sherman C. Griffiths, was killed while attempting to execute the warrant. Albert Lewin was arrested and charged with the murder of Detective Griffiths. For a more complete discussion of the police conduct involved in the investigation, arrest, and indictment of Lewin, see Commonwealth v. Lewin, 405 Mass. 566, 542 N.E.2d 275 (1989). See also Commonwealth v. Lewin (No. 3), 408 Mass. 147, 557 N.E.2d 721 (1990); Commonwealth v. Lewin (No. 2), 407 Mass. 629, 555 N.E.2d 557 (1990), Commonwealth v. Lewin (No. 1), 407 Mass. 617, 555 N.E.2d 551 (1990).

In late February, 1989, a Superior Court judge (not the trial judge) directed the defendant to file an affidavit about his search for the so-called informant referred to in the warrant affidavit. On March 12, 1989, after eight days of discussing with his attorney his options and the related legal consequences of each option, the defendant signed an affidavit acknowledging that he had included false statements in the search warrant application and that he had told numerous lies in connection with the Lewin case. This affidavit ended the defendant's ongoing effort to cover up his misconduct in the Lewin case.

In this appeal, the defendant raises numerous claims of error, the most substantial of which is that he was forced to testify by the improper introduction in evidence of his affidavit in derogation of his rights under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.

This argument is based on the assertion that, although the motion judge, who was not the trial judge, found his affidavit to be voluntary, the jury subsequently found his affidavit to be involuntary. As a result, the defendant maintains that, under Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), his trial testimony explaining the statements made in his affidavit should not have been admitted because it was a product of his involuntary confession.

Our humane practice rule requires a judge to make a preliminary finding that a confession was voluntary before it can be introduced at trial. See Commonwealth v. Tavares, 385 Mass. 140, 149-150, 430 N.E.2d 1198 cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). If a judge decides that a confession is voluntary, he should then instruct the jury to consider the confession as evidence only if they also find that the confession was voluntary. Id. In this case, when the defendant moved to suppress his affidavit, the judge specifically held that the defendant signed his affidavit "voluntarily and without coercion and that the affidavit was the product of his free will and rational intellect." ¹ The judge then admitted the defendant's affidavit, and properly instructed the jury about the humane practice rule. We conclude that the defendant's reliance on Harrison is misplaced.

In Harrison, the Supreme Court held that the defendant was compelled to testify to explain away the facts contained within his illegally obtained confession. Harrison v. United States, supra 392 U.S. at 225-226, 88 S.Ct. at 2011-12. The defendant confessed that he had gone to the victim's house armed with a shotgun to rob the victim, and that the victim had been killed while attempting to resist the defendant's entry into the house. Id. at 221, 88 S.Ct. at 2009. At trial the defendant testified instead that he went to the victim's house to pawn the gun, and that the victim was killed accidently when the defendant presented the gun for inspection. Id. "[E]ven if the [defendant] would have decided to testify whether or not his confession had been used, it does not follow that he would have admitted being at the scene of the crime holding the gun when the fatal shot was fired." Id. at 225, 88 S.Ct. at 2012. The confession placed the defendant at the victim's house for an illegal purpose. Unless he succeeded in explaining away this series of events, his conviction was a foregone conclusion. In this case, the defendant testified that the statements contained within his affidavit were true. His testimony corroborated, rather than contradicted, the statements contained in his affidavit. The question is not whether the defendant made a knowing decision to testify, but why. Harrison, supra at 223, 88 S.Ct. at 2010. Here, it cannot be said that his confession compelled the defendant to testify. Whatever motivated him to take the stand, his voluntary corroboration of statements previously made in his affidavit demonstrates that he was not motivated by a desire to explain away that affidavit. Even assuming that the jury found the defendant's affidavit to be involuntary, there is no basis to conclude that he was compelled by that affidavit to testify.

The defendant also raises the following claims which do not require extended discussion: (1) the judge failed properly to instruct the jury on the meaning of wilfulness; (2) the judge failed to instruct the jury as to the available defenses of following orders and reasonable reliance on authority; (3) the judge erroneously allowed an assistant district attorney to provide expert testimony about the materiality of the defendant's statements made in connection with the Lewin case; (4) extraneous matters affected juror deliberations, and therefore, postverdict interviews should have been conducted; (5) the judge erroneously allowed a witness to testify about his recollection of a hearing before the judge who ordered the defendant to provide the affidavit; and (6) the judge failed properly to instruct the jury to consider the defendant's mental state on the issue of specific intent.

1. The judge did not err by failing to instruct the jury that the requirement of wilfulness for each crime dictates that a jury find a specific intent to act with a bad purpose or to do an evil act. Although "wilful" has been defined as knowledge with an evil intent or "a bad purpose," Commonwealth v. Kneeland, 37 Mass. (20 Pick.) 206, 220 (1838), the modern definition is that "wilful means intentional" without making reference to any evil intent as the defendant suggests. Commonwealth v. Welansky, 316 Mass. 383, 397, 55 N.E.2d 902 (1944). See Commonwealth v. Armand, 411 Mass. 167, 170, 580 N.E.2d 1019 (1991) ("wilful conduct" is intentional rather than accidental); Adoption of a Minor, 343 Mass. 292, 297, 178 N.E.2d 264 (1961) (term "wilfully" only requires actor to intend conduct; no ill will or malevolence required); New England Trust Co. v. Paine, 317 Mass. 542, 548, 59 N.E.2d 263 (1945) ("wilful default" is intentional making away with property). We conclude that the judge's instruction was proper.

2. The judge was not required to instruct the jury on the defenses of following orders and...