Com. v. Parker

• Citation: 522 N.E.2d 924,402 Mass. 333
• Parties: COMMONWEALTH v. David J. PARKER (and three companion cases 1 ).
• Decision Date: 09 May 1988
• Court: United States State Supreme Judicial Court of Massachusetts

Page 924

522 N.E.2d 924

402 Mass. 333

COMMONWEALTH v. David J. PARKER (and three companion cases ¹).

Supreme Judicial Court of Massachusetts Plymouth.

Argued March 9, 1988.

Decided May 9, 1988.

Kevin J. Reddington, Brockton, for Wayne D. Parker.

Thomas L. Largey, Quincy, for David J. Parker.

Ann E. Rascati, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The defendants, brothers Wayne Parker and David Parker, appeal from their convictions of murder in the first degree. Also on appeal are Wayne's conviction of unarmed robbery (on an indictment charging armed robbery), and David's conviction of larceny from the person (on an indictment charging armed robbery). The defendants join in arguing several grounds for reversal. We hold that it was error for the trial judge to refuse to provide requested instructions to the jury concerning the effects of intoxication on the defendants' ability to form the specific intent required for the crimes of unarmed robbery and larceny from the person. We also hold that the judge erred by charging the jury that voluntary intoxication could not be considered in determining whether the defendants were engaged in a joint criminal venture and whether they were guilty of murder in the first degree under the felony-murder doctrine. Accordingly, we reverse the defendants' convictions.

We recite some of the facts that the jury could have found, leaving others for discussion as specific issues arise.

The defendants and the victim, Jose Gomes, on May 4, 1984, were driving in the defendants' automobile with the intention of going to see the ocean. Wayne drove David sat in back, and Gomes occupied the front passenger's seat. Gomes was an elderly man who suffered the handicap of having no fingers. All three individuals consumed alcohol during the drive. At some point, an argument over money ensued, and Wayne stopped the vehicle. Wayne reached into Gomes's pocket, took his money and pushed Gomes from the vehicle. After driving a few minutes, the defendants returned and told Gomes to get back in the vehicle and returned his money. The argument continued, however, and Wayne reached into Gomes's pocket and took the money again, whereupon David began choking Gomes from behind. Wayne pushed Gomes out of the vehicle, and the defendants drove away. After driving a short distance, the defendants turned their automobile around and returned to the scene. Upon arriving, the defendants discovered that Gomes was still alive. David choked him again, and hit him on the head with a stone found nearby. The brothers dragged Gomes off the roadway into a gravel-filled depression, and threw more rocks at the victim's head.

1. Intoxication instructions. The judge erred in failing to charge the jury, upon request, on the possible effects of intoxication on the ability to form the specific intent required for the felony of unarmed robbery and the lesser included offense of larceny from the person. We held in Commonwealth v. Henson, 394 Mass. 584, 593, 476 N.E.2d 947 (1985), that: "It is time to announce that where proof of a crime requires proof of a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should instruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt." The judge, apparently uncertain whether our holding in Henson applied to unarmed robbery cases, did not instruct the jury as to Henson principles. We must, therefore, set aside the verdict of guilty of unarmed robbery against Wayne Parker, and the verdict of guilty of larceny from the person against David Parker.

The judge further erred by instructing the jury that "voluntary intoxication has no effect upon a jury's determination or consideration of first degree murder on the basis of felony murder. It also has no effect upon joint enterprise factors." Defense counsel objected to this instruction at the conclusion of the judge's charge. As we explained above, voluntary intoxication can, indeed, be considered by the jury as it affects a defendant's ability to form the specific intent required for the underlying felony in a first degree murder case based on the felony-murder doctrine. It was error for the judge to preclude the jury from considering the bearing, if any, that either defendant's intoxicated condition had on his ability to form the specific intent to steal.

It was also error for the judge to charge the jury not to consider either defendant's intoxication as it may have affected his ability to form the shared intent required to support a joint enterprise theory. Although the judge provided extensive instructions on the necessary elements of joint enterprise, in addition to an instruction that all the evidence (including evidence of the defendants' intoxication) could be considered by the jury in making its final determinations, we cannot ignore the erroneous portion of the judge's charge. "[T]he fact that some of the instructions were correct is not determinative because 'we cannot know whether the jury were guided by the correct or incorrect portion of the instruction.' " Commonwealth v. Nieves, 394 Mass. 355, 362, 476 N.E.2d 179 (1985), and cases cited. Commonwealth v. Mulica, 401 Mass. 812, 818, 420 N.E.2d 134 (1988). We need not decide whether a separate intoxication instruction on the ability to form a shared intent is required when the Commonwealth argues a joint enterprise theory at trial. To dispose of this case, we need only hold that it was reversible error for the judge to instruct the jury that voluntary intoxication could not be considered. See Commonwealth v. Glass, 401 Mass. 799, 809-810, 519 N.E.2d 1311 (1988); Commonwealth v. Tevenal, 401 Mass. 225, 230-231, 515 N.E.2d 1191 (1987) (even though separate intoxication instructions are not required on issue of defendant's conscious disregard for risk to human life, judge's charge should not foreclose jury from considering evidence of defendant's voluntary intoxication).

The jury found the defendant, Wayne Parker, guilty of murder in the first degree on the ground of felony-murder and on the ground of deliberately premeditated malice aforethought. The jury found David Parker guilty of murder in the first degree on the single basis of deliberately premeditated malice aforethought. Because the judge's erroneous charge clearly tainted the conviction premised on felony-murder, and because we cannot determine whether the convictions based on deliberate premeditation were found by the jury on a joint enterprise theory, the verdicts of murder in the first degree against both Wayne and David must be set aside.

We next consider the issues raised on appeal that are likely to arise at retrial.

2. Motions to suppress. The defendants each filed pretrial motions to suppress oral and written statements given to the police. After hearings, the motions were denied. On appeal, the defendants contend that their confessions were the product of illegal arrests and should not have been admitted at trial. We disagree.

After hearing evidence, the judge made the following findings of fact. On May 10, 1984, police officers obtained a warrant authorizing a search of the premises where the defendants were known to be residing. The police officers went to the residence that evening and made a peaceful entry. They informed the defendants that they were investigating Gomes's murder and had a warrant to search the premises. At this time, the defendants were read their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and they indicated that they understood them.

Police officers then commenced a search of the residence. In accordance with routine procedure, the officers requested that the defendants remain in one area of the home while the search was being conducted. The defendants complied with this request. During this time, the officers made observations of the Parkers, and concluded that they were not under the influence of alcohol or controlled substances.

The defendants were then asked if they would answer some questions concerning Gomes's death at the Halifax police station. Although informed that they were not under arrest, the defendants agreed to be questioned at the station. To ensure that no evidence would be concealed or destroyed, the officers accompanied the Parkers to their rooms and watched them change into their street clothes. The defendants were then transported to the police station in separate vehicles. They were not handcuffed. Upon reaching the station, the police conducted separate interviews with the defendants.

Prior to questioning, both defendants were readvised of their Miranda rights and provided with printed Miranda cards. After reading the cards and indicating that they understood their rights, the defendants signed the cards. Both defendants agreed to answer questions and subsequently each gave a statement in which they detailed the killing of Jose Gomes. Both defendants were then arrested.

The defendants next agreed individually to repeat their statements on videotape. While waiting for the videotape equipment to arrive, the defendants had doughnuts and coffee with the police officers. At that time, the defendants revealed that personal property of the victim was hidden in their home, and they both signed consent forms authorizing a further search of their home.

Before the videotaping, the defendants were again advised of their Miranda rights. During the videotaping, the defendants acknowledged that both their previous inculpatory statements and the videotaped confessions were voluntary, made with full understanding of their rights, and were not prompted by coercion or...