Com. v. Masskow

• Decision Date: 01 December 1972
• Citation: 362 Mass. 662,290 N.E.2d 154
• Parties: COMMONWEALTH v. William MASSKOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 154

290 N.E.2d 154

362 Mass. 662

COMMONWEALTH v. William MASSKOW.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 2, 1972.

Decided Dec. 1, 1972.

Alexander Whiteside, II, Boston, for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.

BRAUCHER, Justice.

This is an appeal under G. L. c. 278, §§ 33A--33G, from a conviction upon an indictment charging the defendant with the murder of his sister's husband. The defendant was arrested on August 17, 1966, shortly after the death of the victim. Until September, 1968, the defendant was deemed incompetent to stand trial, and the trial was held in May, 1969. There was a nolle prosequi of so much of the indictment as alleged first degree murder, and the defendant was convicted of murder in the second degree. In February, 1971, the defendant moved for a new trial, and the motion was denied in April 1971.

The defendant argues two main points: first, that the judge erred in admitting in evidence the defendant's 'confession' to a police officer while in custody, and second, that a new trial should be ordered because the prosecution withheld evidence of the defendant's lack of criminal responsibility and because justice so requires in view of the totality of the evidence. At the trial, the defendant made no attempt to controvert the evidence for the prosecution, but contended only that he was insane and was in no way responsible for what took place. Compare Commonwealth v. Cox, 327 Mass. 609, 610, 100 N.E.2d 14. Without objection the judge charged the jury that 'there doesn't seem to be any dispute that this defendant shot and killed' the victim. In his motion for a new trial, the defendant asserted that the 'sole defense in this case was that the defendant's mental condition was such that he was not criminally responsible for the alleged homicide.' Some of the defendant's present contentions seem to run counter to his trial strategy. See Commonwealth v. Johnson, 352 Mass. 311, 317, 225 N.E.2d 360, cert. dism. as improvidently granted sub nom. Johnson v. Massachusetts, 390 U.S. 511, 511n, 88 S.Ct. 1155, 20 L.Ed.2d 69; COMMONWEALTH V. EARL, MASS., 283 N.E.2D 677^A.

We summarize first the evidence for the prosecution apart from any admissions of the defendant. He was thirty-five years old at the time of the shooting, and had lived in the same house with his sister for many years. The victim, her husband, had lived in the same house since their marriage in 1963. The defendant had an eighth grade education, a long history of alcoholism and possibly drug addition, including hospitalization, ate tranquilizer pills 'like candy,' and never held a steady job. The victim regularly beat his wife, and the defendant observed many of the beatings. On quite a few occasions the defendant asked the victim to stop, but his sister told him not to interfere. The defendant kept guns as a hobby.

On the night of the shooting the defendant was last seen by his sister at supper with her father, her husband, and her five children. She last saw the victim when she went to bed about 9 or 9:30 P.M. About 1:30 A.M. the victim was shot in the head three times in his separate bedroom, probably while in a sitting position. About that time a next door neighbor, returning home after a work day ending at midnight, thought he heard a gunshot. Then the defendant, whom the neighbor had known about ten years, came along, called to the neighbor, threatened him with a gun, and shot at a car. The neighbor grabbed the gun when it fell out of the defendant's pocket, and the defendant fled. The neighbor asked his mother to call the police. The police came and arrested the defendant. Three bullets found in the victim's room and one found in the car at which the defendant had shot had been fired from the gun taken from the defendant. That gun required a separate pull of four to four and one-half pounds on the trigger for each successive shot. Ammunition taken from the defendant on his arrest was of the same make and caliber, and there was human blood on the defendant's shirt.

We next summarize the statements of the defendant which were admitted in evidence without any exception by him. The defendant, before he was arrested, told the neighbor that he had shot the victim because '(h)e twisted the dog's ear, hit my sister. . . . I ran into the bedroom. . . . I woke him up told him I was going to shoot him, and I shot him. . . . I can shoot you, too. You coming with me? . . . If that is the cops, I will shoot it out with them.' He wanted to make a telephone call, but not from the telephone in a nearby laundromat: 'No, the cop is in there all the time and I know him and they have been looking for me and he will pick me up.' Later he said, 'If there is anybody in that car I will shoot them.' Still later he said, 'Stop. If you're thinking about running, don't, because I am a good shot. I can shoot you just like anything . . .. I can really shoot you.' When he shot at the car, the neighbor said, 'Sonny, cops are going to be coming,' and the defendant said, 'I know. We have to go hide somewhere.' After the neighbor grabbed the gun, the defendant said, 'Don't turn me in. I know a lot of . . . friends. If I can't get you, they will.' When he was arrested, the defendant said to the arresting officers, 'Shoot anyway. I am going to get the chair.' When asked his name, he said, 'I know my rights. I don't have to tell you anything.' At the station he telephoned his father and said, 'Dad, I am in a little bit of trouble. . . . I am in bad trouble.' He then turned to an officer and said, 'He deserved it. He best up my sister and he punctured her cardrum.' He also asked if he could be bailed.

1. The 'confession.' After the neighbor and two police officers had testified to the statements we have summarized, a third police officer testified that at the police station Captain Finn had warned the defendant of his rights. The officer was asked whether he heard the defendant say anything after he was warned of his rights. Over the defendant's objection and exception, the officer answered, 'Yes.' Without further objection the officer was asked, 'What did he say?' and he answered, 'He came out with some beauties.' The defendant objected that the witness should be asked whether 'in his opinion the man knew what he was doing or knew what he was talking about.' The officer testified, 'Whether he understood it or not, it's a difficult question to answer. . . . No, I really couldn't answer whether he understood the questions or not. If he realized the depth of the questions, I don't know.' Upon the defendant's renewed objection the judge ruled that he would permit testimony as to a statement made voluntarily by the defendant without a question, and that the defendant's lack of understanding 'goes to the weight of the evidence.' The defendant excepted to that ruling. In response to several further questions by the prosecutor, by counsel for the defendant, and by the court, without further objection or exception, the officer testified that the defendant 'stated that he knew at the time Capt. Finn was a no good . . . (obscenity),' that Captain Finn asked, 'Do you realize or do you understand what you are in here for?' and that the defendant said, 'Yes, I know what I am here for, because I shot that . . . (obscenity) brother-in-law.'

The defendant assigns as error the admission in evidence of his 'confession' that he 'killed' his brother-in-law, the judge's ruling that his understanding went to the weight of the evidence, and the consequent failure to consider whether the 'confession' was voluntary, 'the product of a rational intellect,' citing Eisen v. Picard, 452 F.2d 860, 865 (1st Cir.), cert. den. sub nom. Picard v. Eisen, 406 U.S. 950, 92 S.Ct. 2042, 2 L.Ed.2d 338. The Commonwealth argues that the evidence was admitted without objection, and that the assignment of error therefore brings nothing before us. But we think the earlier exception sufficiently raised the question whether it was error to admit evidence of the defendant's in-custody inculpatory statement, if it 'most probably was not the product of any meaningful act of volition.' Blackburn v. Alabama, 361 U.S. 199, 211, 80 S.Ct. 274, 282, 4 L.Ed.2d 242.

The defendant moved before trial to suppress all confessions in view of his rights to remain silent and to consult with his attorney, without mentioning voluntariness or mental competency. The main evidence of the defendant's insanity was not introduced until after the challenged ruling, and the defendant did not request a voir dire or move to strike the testimony. The Commonwealth argues that in this situation the judge's ruling should be upheld, because it was correct at the time he made it. We pass this contention. See Blackburn v. Alabama, 361 U.S. 199, 209--210, 80 S.Ct. 274, 4 L.Ed.2d 242. Where, as in the Blackburn case, a conviction rests significantly on a full-fledged confession by the defendant, there is authority that, once it becomes apparent that the accused's mental condition is a factor tat ought to be looked into in relation to the admissibility of his confession, the trial judge on his own motion should order a hearing on the defendant's capacity to make the confession. United States v. Silva, 418 F.2d 328, 330--331 (2d Cir.).

Moreover, in Eisen v. Picard, 452 F.2d 860 (1st Cir.), cert. den. sub nom. Picard v. Eisen, 406 U.S. 950, 92 S.Ct. 2042, 2 L.Ed.2d 338, the Court of Appeals applied the Blackburn rule to inculpatory statements made by the defendant after he was taken into custody, including spontaneous statements to police officers. It was apparently that court's view that, if the trial judge has before him substantial evidence of the defendant's insanity at the time of such statements, it must appear from the record 'with unmistakable clarity' that the trial judge considered whether the...