Com. v. Selby

• Decision Date: 21 November 1997
• Citation: 426 Mass. 168,686 N.E.2d 1316
• Parties: COMMONWEALTH v. Cory SELBY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1316

686 N.E.2d 1316

426 Mass. 168

COMMONWEALTH v. Cory SELBY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 14, 1997.

Decided Nov. 21, 1997.

Dana A. Curhan (Jeffrey Denner with him), for defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

IRELAND, Justice.

A Superior Court jury convicted the defendant of murder in the first degree on two separate theories: deliberate premeditation and felony-murder. The killing took place during the commission of a separate felony punishable by life imprisonment--in this case, armed assault within a dwelling, G.L. c. 265, § 18A, for which the defendant also was convicted. The defendant received the mandatory term of life imprisonment without possibility of parole on the first degree murder conviction and a concurrent sentence of from four to five years on a conviction of unlawfully possessing a firearm, third offense, G.L. c. 269, § 10(a ). (The judge placed the conviction of armed assault in a dwelling on file, with the defendant's consent, without imposing sentence.)

The defendant appeals from the convictions, claiming that he was improperly denied his right to cross-examine a police officer concerning that officer's knowledge or awareness of certain dictum in Commonwealth v. Selby, 420 Mass. 656, 651 N.E.2d 843 (1995). ¹ He also claims that he should have received a jury instruction on involuntary manslaughter. Finally, he requests relief under G.L. c. 278, § 33E, owing in substantial part to the alleged misconduct of two police officers who, admittedly, used deceptive tactics to elicit from him incriminating statements while he was in police custody. We affirm the convictions.

The deceptive tactics of the two officers are described in Commonwealth v. Selby, supra at 658-659, 651 N.E.2d 843. ² On examining the "totality of the circumstances" surrounding the defendant's statements, we concluded that, in fact, they were given voluntarily and without coercion, despite the officers' ruse. Id. at 664-665, 651 N.E.2d 843. At the same time, we expressed in dictum our disapproval of such police tactics. Id. at 665, 651 N.E.2d 843.

1. Limitation on cross-examination. During his cross-examination of one of the police officers, defense counsel attempted to elicit evidence of the dictum in Selby. Counsel asked whether the officer was "aware that the State Supreme Court has disapproved of [the officers' technique of deception]." The officer responded, "I believe the State Supreme Court has approved this method, upheld this method five to zero most recently." ³ Defense counsel then remarked to the officer, "There was a decision that they [the Supreme Judicial Court] disapproved of it...." The judge interrupted and, at sidebar, instructed counsel to terminate further inquiry into the Selby opinion. Defense counsel lodged no objection to the judge's ruling; nor did he produce an offer of proof explaining why testimony concerning a witness's knowledge, understanding, or interpretation of a particular appellate opinion (or dictum therefrom) was relevant and admissible. Our standard of review, therefore, is limited to whether the uncontested restriction by the judge on cross-examination of the police officer posed a substantial likelihood of a miscarriage of justice. See, e.g., Commonwealth v. Young, 401 Mass. 390, 404, 517 N.E.2d 130 (1987). We conclude that it did not.

According to the defendant, the truncated inquiry into the Selby opinion left jurors with the false impression that the Supreme Judicial Court approves of police use of deceptive tactics while questioning suspects. Whatever we wrote in Selby (or how that was interpreted by a witness) was irrelevant to the core question posed to the jurors, namely, whether the defendant's incriminating statements were voluntary beyond a reasonable doubt. See Commonwealth v. Grenier, 415 Mass. 680, 687, 615 N.E.2d 922 (1993) (jury could consider defendant's statement only on finding beyond reasonable doubt that it was made voluntarily); Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982) (jurors must disregard defendant's admissions unless Commonwealth proves beyond a reasonable doubt that they were voluntary). In assessing that question, the jurors were to consider all of the evidence "surrounding the interrogation and the individual characteristics and conduct of the defendant." Selby, supra at 663, 651 N.E.2d 843, and cases cited. See also Commonwealth v. Edwards, 420 Mass. 666, 673-674, 651 N.E.2d 398 (1995). That, of course, included detailed evidence produced by the defendant concerning the officers' use of trickery to help induce the defendant's statements. Cf. Commonwealth v. Meehan, 377 Mass. 552, 563, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980) (judge should consider police misconduct, including misinformation given to a defendant by police officer, in ruling whether confession is voluntary).

The entire question of the voluntariness of the defendant's incriminating statements was submitted to the jury for their independent consideration, in keeping with our long-standing rule of "humane practice." See Commonwealth v. Paszko, 391 Mass. 164, 179-180, 461 N.E.2d 222 (1984); Tavares, supra at 149-153, 430 N.E.2d 1198; Commonwealth v. Chung, 378 Mass. 451, 456, 392 N.E.2d 1015 (1979) (humane practice applied to confessions but not to admissions); and Commonwealth v. Harris, 371 Mass. 462, 469-470, 358 N.E.2d 982 (1976) (humane practice applied to confessions only). In Tavares, supra, we extended our humane practice to include "all incriminating statements made by the accused," even statements, like those of the defendant here, that fall short of a full confession. Id. at 150, 430 N.E.2d 1198.

Under humane practice, the question whether the defendant's incriminating statements or confessions are voluntary is first decided by the judge outside of the jury's presence. Id. at 149, 430 N.E.2d 1198. If the judge concludes that the statements were, in fact, voluntary, then the entire matter is submitted to the jury for their own determination. Id. at 150, 430 N.E.2d 1198. We have stated a preference that jurors not be informed beforehand of the judge's initial findings on the voluntariness issue. Harris v. Commonwealth, 371 Mass. 478, 481 n. 3, 358 N.E.2d 991 (1976) ("better practice" is for judge not to inform jury of his conclusion). In essence, then, humane practice gives a defendant two opportunities--one before a judge and another before a jury--to demonstrate that his admissions or confessions were not voluntary. Humane practice, however, is not constitutionally required. See Paszko, supra at 181, 461 N.E.2d 222; Tavares, supra at 151-152, 430 N.E.2d 1198; and Chung, supra at 456, 392 N.E.2d 1015, all of which state that the judge's initial ruling on voluntariness and, hence, admissibility of admissions or confessions is constitutionally required, but that independent jury consideration of voluntariness under humane practice is not.

The jury were given correct instructions on the voluntariness issue. Those instructions included detailed remarks reminding the jurors about the officers' use of a ruse on the defendant. The jury were further instructed that they should consider that tactic in the over-all calculus--"the totality of the circumstances"--surrounding the defendant's statements. Significantly, defense counsel neither requested a special instruction on the subject, nor moved to strike the testifying officer's remark about the Selby case--a remark that he, himself, had elicited from the officer. Certainly, the judge was not required to strike the officer's remark on his own initiative. The fact that the officer's remark may have led jurors to surmise that the voluntariness of the defendant's statements had initially been decided in the Commonwealth's favor, first by a Superior Court judge and then by the Supreme Judicial Court, did not, however, create a substantial likelihood of a miscarriage of justice.

2. Failure to instruct on involuntary manslaughter. The defendant contends that the judge erred in failing to instruct the jury on involuntary manslaughter despite several requests that he do so. "Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct." Commonwealth v. Evans, 390 Mass. 144, 150, 454 N.E.2d 458 (1983), quoting Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833 (1975). Here, the defendant contends that he did not intend the shooting and that the homicide occurred accidently because when the victim grabbed the gun, he "reflexively" pulled the trigger several times. Thus, he contends that the jury should have been given an instruction on involuntary manslaughter. We disagree.

There was uncontradicted evidence that the defendant...