Com. v. Robinson

• Decision Date: 18 May 1979
• Citation: 7 Mass.App.Ct. 600,389 N.E.2d 758
• Parties: COMMONWEALTH v. Earle R. ROBINSON.
• Court: Appeals Court of Massachusetts

Page 758

389 N.E.2d 758

7 Mass.App.Ct. 600

COMMONWEALTH v. Earle R. ROBINSON.

Appeals Court of Massachusetts, Middlesex.

Argued April 6, 1979.

Decided May 18, 1979.

Willie J. Davis, Boston, for defendant.

Pamela L. Hunt, Legal Asst. to the Dist. Atty., for the Commonwealth.

Before HALE, C. J., and ARMSTRONG and DREBEN, JJ.

HALE, Chief Justice.

The defendant appeals from his convictions on indictments charging him with sexual intercourse or unnatural sexual intercourse with a child under sixteen years, ¹ kidnapping, and assault and battery by means of a dangerous weapon. There was evidence from which the jury could have found that the defendant picked up a fifteen year old hitchhiker, who was taken against his will to a parking lot at the Burlington Mall and forced at knifepoint to commit fellatio on the defendant. The victim gave the police a physical description of the person who had abused him, together with descriptions of the clothing, shoes, sunglasses, and ring that the person had worn, the automobile and the knife. He told the police that he had been taken to a large parking lot where he had seen a yellow pole with a square sign with the number two thereon, and a building with the letters L-Y-O-N. The police and the victim unsuccessfully looked for the parking lot; they did not go to the Burlington Mall. Several days later the victim made a photographic identification of the defendant, and a warrant for his arrest was obtained. The defendant was arrested, and the ring and shoes he was wearing were similar to those earlier described by the victim. As the result of questioning which was preceded by giving the defendant the Miranda warnings, he told the police that he had picked up the victim and that he was sorry about what had happened. He said the event took place at the Burlington Mall. He gave the police written permission to search his car, stating that "(t)he knife I used is in the glove box of the car." A search revealed a knife like the one described by the victim. The victim later accompanied the police to the Burlington Mall, where the pole, sign, and building he had previously described were located.

1. The defendant's fourth and tenth assignments of error are concerned with the voluntariness of his confession. He first argues that the judge's finding that he intelligently waived his right to remain silent is not clearly supported by the record, such that it was error to deny his motion to suppress. The judge made findings that, at the time of arrest and later at the police station, the defendant had been given the Miranda warnings prior to any questioning by the police. The defendant responded that he understood the warnings and answered negatively when asked if he wanted to call a lawyer. He executed a written waiver of his right to call a lawyer and gave the police permission in writing to search his car. We will not revise these subsidiary findings where, as here, after examining the evidence before the judge, we determine that they were warranted by the evidence. Commonwealth v. Valliere, 366 Mass. 479, 486, 321 N.E.2d 625 (1974). Commonwealth v. Watkins, --- Mass. ---, --- ^A, 379 N.E.2d 1040 (1978). Recognizing that there is a heavy burden on the Commonwealth to demonstrate a knowing and intelligent waiver and that the courts will indulge every reasonable presumption against waiver (Commonwealth v. Duston, --- Mass. ---, --- - --- ^B, 368 N.E.2d 1388 (1977), cert. denied, 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 540 (1978) ), we nevertheless conclude that the judge was warranted in finding that the defendant had voluntarily and intelligently waived the right to remain silent. See North Carolina v. Butler --- U.S. ----, ----, 99 S.CT. 1755, 60 L.Ed.2d 286 (1979). Such a finding is entitled to substantial deference. Commonwealth v. Doyle, --- Mass. ---, --- n.6 ^C, 385 N.E.2d 499 (1979). The lack of a written waiver of this right does not change the result. Commonwealth v. Roy, 2 Mass.App. 14, 20, 307 N.E.2d 851 (1974).

The defendant further argues that it was error for the judge to refuse to charge the jury that, in determining whether the defendant's confession was made voluntarily, they should consider whether the defendant had been advised of his rights and whether he had understood and waived them. ² The judge charged the jury that they must first determine whether a confession had been made; if they so found, that they were to determine whether it had been intelligently and voluntarily made "under all the circumstances." The jury were instructed that if they concluded that the confession had been voluntary, they would then be warranted in using the confession in arriving at a verdict.

"When there is conflicting testimony, the humane practice in this Commonwealth is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence, and that they should exclude the confession, if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant." Commonwealth v. Preece, 140 Mass. 276, 277, 5 N.E. 494, 495 (1885). Commonwealth v. Harris, 371 Mass. 462, 469-470, 358 N.E. 982 (1976). We rule that the charge given, by directing the jury's attention "to all the circumstances," met the requirements of our "humane practice" and accurately instructed the jury on the principles designed to protect the defendant. The failure of the judge to give more specific instructions was not error. See Commonwealth v. Sherman, 294 Mass. 379, 394-395, 2 N.E.2d 477 (1936). It was clear from the testimony at trial and from defense counsel's closing argument that whether the defendant had been informed of, understood and waived his rights comprised the "circumstances" which the jury were instructed to consider.

Whether Miranda warnings as given were adequate was an issue for determination by the judge that he was not required to submit to the jury. Commonwealth v. Polidoro, 4 Mass.App. 794, 344 N.E.2d 187 (1976). See Commonwealth v. Johnston, --- Mass. ---, --- ^D, 364 N.E.2d 1211 (1977). In Commonwealth v. Chase, 350 Mass. 738, 745, 217 N.E.2d 195 (1966), cert. denied, 385 U.S. 906, 87 S.Ct. 222, 17 L.Ed.2d 137 (1966), the judge instructed the jury that they were not to consider the constitutional questions whether the defendant had been informed of his right to remain silent and of his right to obtain counsel. The court held there was no error where, as here, the question of voluntariness was explicitly left to the jury and where they were told to consider the circumstances surrounding the obtaining of the statement. See also Wigmore, Evidence § 861a (1970), and cases cited.

2. The defendant also contends, without benefit of an assignment of error or any objection or exception at trial, that G.L. c. 234, § 1A (as in effect prior to St.1978, c. 41, § 1), which permits a judge in his discretion (Commonwealth v. Simpson, 6 Mass.App. --- ^E, 373 N.E.2d 362 (1978)) to excuse a female juror if it appears she would be embarrassed by the testimony at trial, is unconstitutional. He argues that, because the judge gave female jurors the opportunity to be excused without affording possibly sensitive male jurors the same opportunity, he was denied a fair trial. Although we have the power to review a matter where no exception has been saved, we exercise that power sparingly and only where there exists a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). Commonwealth v. Underwood, 358 Mass. 506, 507-509, 265 N.E.2d 577 (1970). Having looked at the record as a whole we perceive no such risk to the defendant in this case. Commonwealth v. Morgan, 369 Mass. 332, 335, 339 N.E.2d 723 (1975), cert. denied 427 U.S. 905, 96 S.Ct. 3190, 49 L.Ed.2d 1198 (1976).

3. The defendant's second assignment of error challenges the judge's refusal to ask the venire whether they would give special credence to the testimony of a police officer or other person with an official title or position. The extent of the examination of prospective jurors was within the sound discretion of the judge. Commonwealth v. Hogue, 6 Mass.App. --- ^F, 377 N.E.2d 711 and cases cited. The record reveals that the judge carefully questioned the venire concerning possible bias or prejudice. The defendant has failed to persuade us that this case should be distinguished from those which hold that there was no abuse of discretion where the judge refused to ask questions similar to those requested here. Commonwealth v. Pinckney, 365 Mass. 70, 72, 309 N.E.2d 495 (1974). Commonwealth v. Walker, 370 Mass. 548, 572, 350 N.E.2d 678 (1976), cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976).

4. The defendant also contends that he was denied a fair and impartial jury by the judge's failure to allow him to exercise certain peremptory challenges he apparently believed he had. This assignment of error is not based on an exception and therefore brings nothing to this court for review. Commonwealth v. Cranshaw, 4 Mass.App. 630, 631, 356 N.E.2d 708 (1976). See paragraph 2 Supra. The record shows that at the conclusion of the hearing on the motions to suppress, the judge inquired whether sixteen jurors should be impanelled, to which defense counsel responded that fourteen jurors would be sufficient. The judge ruled that fourteen challenges would be available and at no time thereafter did he indicate any change in the number of available challenges, although the clerk mistakenly announced sixteen challenges at the start of trial. Fourteen jurors were impanelled, and the defendant exercised his fourteen challenges without any question being raised at the time the clerk made the mistake.

5. Assuming, without deciding, that the exception upon which the defendant's seventh assignment of error was based was timely, we address the issue whether the judge's questioning of the defendant's alibi witness on...