Com. v. Morrissey

• Decision Date: 04 January 1967
• Citation: 222 N.E.2d 755,351 Mass. 505
• Parties: COMMONWEALTH v. William R. MORRISSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 755

222 N.E.2d 755

351 Mass. 505

COMMONWEALTH v. William R. MORRISSEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1966.

Decided Jan. 4, 1967.

Michael A. Molloy, Boston, for defendant.

John A. Pino, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

The defendant was tried on two indictments, one charging him with manslaughter and the other with unlawfully carrying a firearm. The jury returned verdicts of guilty on both indictments. The defendant was sentenced to serve concurrent terms of from seven to ten years on the manslaughter indictment and from two and onehalf to three years on the other indictment. He has appealed under the provisions of G.L. c. 278, §§ 33A--33G. The case is here on a summary of the record, a transcript of the evidence, and assignments of error.

The material evidence consisted of testimony of one Cappellano, a person present during the events which led to the indictments, one Connolly, a police sergeant, one Gravel, a ballistician, and a statement which the defendant had made to the police. Cappellano testified that on the evening of October 10, 1964, he was present together with the defendant, Dennis Mahoney (the deceased), and one O'Toole, in an abandoned house in South Boston.

He first stated that he could not remember whether the defendant was drinking but later in response to the following question, 'You want to leave it that you are the only one that was drinking?' he answered, 'Yes, sir.' While all were present in the kitchen he heard a gunshot, turned around and saw the deceased fall to the floor. The defendant was bending over the deceased but Cappellano didn't 'remember seeing anything in * * * (the defendant's) hand.' The deceased was bleeding, and a cab was called to take him to a hospital. He died as a result of the gunshot wound.

Connolly testified that sometime after the shooting he went to Cappellano's residence where he had Cappellano empty all the trash barrels. A gun in a paper bag was found in one of the barrels. The gun was turned over to the ballistician who testified that the bullet which was found in the head of the deceased was fired from that gun.

The statement of the defendant, which was made to the police four days after the shooting, was read to the jury by one Stapleton, a stenographer. In this statement the defendant said that he found a gun in the cellar of the house, knew it was loaded, and did not remove the bullets. He kept the gun in his hand and carried it upstairs to the kitchen. He said that while in the kitchen 'I had the gun and went to turn around. I was going to pull the trigger and shoot it in the wall, and the kid stepped in front of it, and that is all I remember. He fell, and I yelled, and I said, 'I shot him,' and he fell. He stepped right in front of it. It was accidental. I got down and felt his heart, and the next thing we called a cab and took him to the hospital.' He said that everyone had been drinking and when asked what his condition was that night 'as far as sobriety' said, 'Pretty well gone.'

1. Assignments 2, 9, and 10 relate to the admission in evidence of the defendant's statement to the police and the denial of his motions to suppress that evidence. The defendant argues that the statement was obtained during a police custodial interrogation without the benefit of counsel being present, and thus he was denied his rights under the Fifth, Sixth, and Fourteenth Amendments to the Federal Constitution.

During the defendant's interrogation the following colloquy took place. Q. 'I am going to ask you some questions concerning the shooting of one Dennis Mahoney sometime Saturday night, October 10th. You don't have to answer any of my questions. You understand that?' A. 'I will answer them.' Q. 'Do you understand that the questions I ask you and the answers you give me will be testified to in Court in the event you become a defendant. Do you understand that?' A. 'Yes.' Q. 'And in all probability you will become a defendant in this case. You also are entitled to have an attorney here if you wish. Do you understand that?' A. 'Yes.' Q. 'Do you want to have an attorney here?' A. 'I don't have any.' Q. 'Now that you have been informed of your rights, do you still desire to answer my questions?' A. 'Yes.'

If the standards in Miranda v. State of Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, were applicable to this case we would be compelled to reverse the judgment. 'In order fully to apprise a person interrogated of the extent of his rights under this system * * *, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one' (emphasis supplied). The warning given to the defendant fell short of these requirements. The defendant's statement that he did not have a lawyer cannot be taken as an effective waiver of his right to counsel.

In Johnson v. State of New Jersey, 384 U.S. 719, 721, 86 S.Ct. 1772, 1775, 16 L.Ed.2d 882, the court held that the Miranda case 'applies only to cases in which the trial began after * * * (June 13, 1966).' The trial of the instant case began on January 26, 1966, and thus the rules of Miranda are not required, as a matter of Federal constitutional law, to be applied here.

According to the Johnson case this defendant had no Federal constitutional right to receive the additional instruction from the police that he was entitled to have a lawyer appointed if he could not afford to hire one. Whether to apply the Miranda rule retroactively as a matter of Federal constitutional law was not left to the discretion of the States; but it was left to the discretion of the States to decide whether a State's own law required adoption of Miranda type rules and to what extent such rules should apply. The court in the Johnson case, supra, 733, 86 S.Ct. 1781, said, 'Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.' We are not inclined to do so, nor is there any law in this Commonwealth which requires us to do so. Other State courts have done likewise. Mathis v. State, 280 Ala. 16, 25, 189 So.2d 564, 574. Parson v. State, Del., 222 A.2d 326, 333--334. People v. Myers, 35 Ill.2d 311, 319, 220 N.E.2d 297, 303. People v. Griffin, 4 Mich.App. 604, 606--611, 145 N.W.2d 414, 416--418. State v Cade, 268 N.C. 438, 441, 150 S.E.2d 756, 758. Commonwealth v. Cheeks, 423 Pa. 67, 74, 223 A.2d 291, 295.

It may be argued that we have heretofore applied newly announced principles of Federal constitutional law to cases before us in regular course for decision even though the decisions of the Supreme Court of the United States creating those principles had been handed down subsequent to the trials of such cases (e.g. Commonwealth v. Spofford, 343 Mass. 703, 706--707, 180 N.E.2d 673; Commonwealth v. McCarthy, 348 Mass. 7, 11, 200 N.E.2d 264; Commonwealth v. Guerro, 349 Mass. 277, 280--281, 207 N.E.2d 887; Commonwealth v. Kerrigan, 349 Mass. 295, 298, 207 N.E.2d 882) and that we should continue to do so. But the decisions in those cases were based on the assumption that the Federal Constitution required at least such limited retroactivity. In Dirring, petitioner, 344 Mass. 522, 523, 183 N.E.2d 300, 301, which involved a petition for habeas corpus and which was decided before the case af Linkletter v. Walker, Warden, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, we said, 'Retrospective effect of the Mapp rule is enshrouded in doubt. We do not puzzle as to something which must be, for us, inscrutable.' We held that 'no issue as to illegally seized evidence was brought here by an appropriate appellate procedure * * * following the trial of the indictments,' and hence that it was unnecessary to decide the retrospective effect of the Mapp rule. The Linkletter case validated the result in that case by holding that the Mapp case applied only to cases in which the conviction had not become final before the decision of the Mapp case. But the opinions in the Linkletter case, supra, 629, 85 S.Ct. 1731, and the Johnson case made clear that the Supreme Court of the United States has reserved the general power to decide whether a rule should be given general or limited retrospective effect. Thus, there is no inherently significant difference between a case before us on collateral attack and one before us in regular course for decision which dictates whether a new Federal rule should be applied retroactively. The fact that the defendant's convictions in the instant case had not become final on the date of the decision of the Miranda case is irrelevant in the light of the Johnson case.

As we stated in Commonwealth v. Spofford, supra, 343 Mass. 707, 180 N.E.2d 676, an appeal 'before us in regular course for decision' will be decided 'on the law as it presently stands.' The law, both Federal and State, as it presently stands, does not confer the benefits of the Miranda case on this defendant.

The requirement that a statement made to the police be voluntary has not been altered by the Johnson case, supra, 384 U.S. 730, 86 S.Ct. 1772. Davis v. State of North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895. The judge, in denying the defendant's motion 'to abate, dismiss and/or (sic) quash,' found that the defendant's statement was made voluntarily. Evidence of the voluntariness of the statement was taken on voir dire and the judge again ruled that the statement was made voluntarily. The jury also heard evidence of the voluntariness of the...