Com. v. Podlaski

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation385 N.E.2d 1379,377 Mass. 339
Decision Date21 February 1979

Page 1379

385 N.E.2d 1379
377 Mass. 339

Supreme Judicial Court of Massachusetts, Suffolk.
Argued Nov. 7, 1978.
Decided Feb. 21, 1979.

Page 1381

[377 Mass. 340] Daniel J. O'Connell, III, Boston, for defendant.

William J. Doyle, Asst. Dist. Atty., for Commonwealth.

Before [377 Mass. 339] HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

[377 Mass. 340] WILKINS, Justice.

We affirm the defendant's conviction of murder in the first degree and conclude that justice does not require the entry of a verdict of a lesser degree of guilt under G.L. c. 278, § 33E. The defendant's principal contention is that the evidence did not warrant submitting the case to the jury on the issue of murder in the first degree.

We summarize the evidence against the defendant. Shortly after 2 A.M. on May 3, 1977, Mr. and Mrs. Antonik of 43 Woodward Street, South Boston, were awakened by the noise of a slamming door. Mr. Antonik arose and heard a voice, coming from the direction of 40 Woodward Street, saying, "Kill him. Kill him." Mrs. Antonik went to a bedroom window and saw two men, later identified as Hughes and Barroni, dragging another man she did not know off the sidewalk in front of 40 Woodward Street. The defendant, whom she recognized, was accompanying Hughes and Barroni. They stopped momentarily. The defendant, who was wearing a pink shirt, bent over the victim and said, "Oh, shit, the bastard is dead." Hughes and Barroni dragged the victim down Woodward Street onto Leeds Street, with the defendant following closely behind them.

Mrs. Peltz, who lived at the corner of Woodward and Leeds Streets, was also awakened by noise shortly after 2 A.M. She saw the defendant following Hughes and Barroni as they dragged the victim onto Leeds Street and dropped him there. Hughes beat the victim several times with his fists and then kicked him a few times. Neither Mrs. Peltz nor the Antoniks saw the defendant touch the victim. When Mrs. Peltz cried out, "What are you doing?", the three men looked up and walked away quickly. [377 Mass. 341] A few minutes later, Mr. Antonik

Page 1382

watched the defendant, now shirtless, and the other two men enter 40 Woodward Street.

About 2:30 A.M., an ambulance arrived at Leeds Street. There was a pool of blood on the street near the victim's head. He had no pulse or blood pressure, but he was breathing "agonal breaths." The medical examiner testified that a person breathing in this fashion is still alive. At approximately 3 A.M., as the ambulance was leaving, Officer Zweihorn and his partner arrived. After speaking to Mrs. Antonik, they went to 40 Woodward Street. When they approached the front door, the first-floor lights went out. Their knocking brought no response. Officer Zweihorn conferred again with Mrs. Antonik, who told him about a back entrance. The officers went down an alley to the rear of 40 Woodward Street where they saw the defendant, wearing a blue shirt, standing on the top step of the cellar bulkhead. Officer Zweihorn asked the defendant his name and the defendant replied, "Robert Podlaski." He then asked whether the defendant knew anything about the man who had been lying in the street. The defendant replied, "The fellow called my mother a mother fucker and I had to give it to him. I had to do him in." 1 The officers placed the defendant in the police wagon. They entered the house and found Hughes and Barroni, and two other men who were apparently incapacitated by alcohol. All four of them were put in the wagon.

The house appeared to be abandoned. The rooms were in general disarray, littered with empty beer cans, wine bottles, and whiskey bottles. The police found no bloodstains in the house.

At the South Boston police station, Officer Zweihorn first noticed what appeared to be blood on the defendant's [377 Mass. 342] pants. Later, the defendant tried to wash his pants in the toilet bowl in his cell. Tests showed traces of human blood on the pants, on the soles of both shoes, and on the toe of the right shoe.

The victim died as the result of fractures of the ribs and a rupture of the vena cava, the large vein that carries blood from the head to the aorta. The medical examiner concluded that the victim could have lived for five to fifteen minutes after the rupture. The rupture had to have been caused by a "terrific belt." The victim was dead on arrival at Boston City Hospital. 2

The only evidence offered by the defense was the testimony of a psychiatrist who examined the defendant six days after the victim's death. He concluded that the defendant was then suffering from delirium tremens or alcohol withdrawal syndrome, a condition that usually starts forty-eight to seventy-two hours after one who has been drinking consistently to the point of inebriation for several years suddenly stops drinking. 3

1. Admissibility of Defendant's Statement.

The judge properly denied the defendant's motion to suppress his statement to Officer Zweihorn that "he had to do (the victim) in, give it to him, and had to do him in because he called him, called him and his mother a mother fucker." The defendant

Page 1383

contends this statement should [377 Mass. 343] have been suppressed because he was in custody at the time and had not been given Miranda warnings. 4

The short answer to the defendant's argument that Miranda warnings should have been given is that, when he made the statement, he was not "in custody . . . or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). The questioning by Officer Zweihorn was a proper preliminary inquiry not requiring Miranda warnings. See Commonwealth v. Borodine, 371 Mass. 1, 4-5, 353 N.E.2d 649, 652 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The fact that the officer would not let the defendant leave until he had talked to him did not make the interrogation custodial. No suspicion had even focused on the defendant. "The questions were preliminary, directed to discovering . . . what he knew about the circumstances." Commonwealth v. Borodine, supra. Unlike the situation in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), the officers did not question the defendant about incriminating facts without first informing him of his rights. Nor was this an overbearing, noncustodial interrogation. See Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). Before the defendant made his statement, Officer Zweihorn asked him only his name and whether he knew anything about the man who had been lying in the street.

2. Sufficiency of the Evidence.

The defendant next argues that the evidence was insufficient to warrant a finding of guilty of murder in the first degree. Although he does not explicitly so state in his [377 Mass. 344] brief, we assume from his assignments of error that he bases this objection solely on the denial of his motion for a directed verdict "on so much of the indictment that alleges murder." In that form, the motion should have been denied if the evidence warranted a finding of murder in the second degree. The judge, however, was willing to treat the motion as including a request for a directed verdict on so much of the indictment as alleged murder in the first degree, and we shall do so as well.

The defendant argues that the case should not have been submitted to the jury on either the theory of deliberately premeditated murder or the theory of murder with extreme atrocity or cruelty. The motion for a directed verdict should have been denied unless the defendant was correct on both aspects of his argument. 5 Consequently, we need not reach all the defendant's contentions if there was any basis on which the case properly went to the jury concerning the defendant's guilt of murder in the first degree. However, because the ultimate result is not affected in any way and because, in any event, we must give some consideration to each issue in performing our duty under G.L. c. 278, § 33E, we shall treat the defendant's argument as properly directed toward each theory of murder in the first degree. In the same fashion, and for the same reasons, we shall consider the propriety of the submission of

Page 1384

the case to the jury on the theory of joint venture. 6

[377 Mass. 345] The principal thrust of the defendant's argument is that there was no evidence that he caused the victim's death and no evidence that he participated in the killing as a joint venturer. He argues that there was no direct evidence he struck the victim and that the fatal blow must have been struck by someone else while the victim was lying in the street. The evidence shows, he claims, only that he was present during the commission of the crime (see Commonwealth v. Clark, 363 Mass. 467, 473, 295 N.E.2d 163 (1973); Commonwealth v. Benders, 361 Mass. 704, 708, 282 N.E.2d 405 (1972)) and not that he aided, assisted, or encouraged the others during its commission (see Commonwealth v. Ambers, 370 Mass. 835, 839, 352 N.E.2d 922 (1976); Commonwealth v. Perry, 357 Mass. 149, 151, 256 N.E.2d 745 (1970)).

The evidence warranted the conclusion that the defendant was not merely an innocent bystander, but was guilty either as a joint venturer or as a principal. See Commonwealth v. Scanlon, --- Mass. ---, --- - --- A, 364 N.E.2d 1196 (1977); Commonwealth v. Britt, 358 Mass. 767, 769-770, 267 N.E.2d 223 (1971). Moreover, the evidence warranted such a finding on either of two theories of murder in the first degree.

a. Premeditated murder. The case properly went to the jury on the issue of deliberately premeditated murder. The defendant's statement, "I had to give it to him. I had to do him in," is sufficient to support a finding of premeditation by the defendant himself. The...

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