Com. v. Tavares

• Citation: 430 N.E.2d 1198,385 Mass. 140
• Parties: COMMONWEALTH v. David N. TAVARES.
• Decision Date: 29 January 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1198

430 N.E.2d 1198

385 Mass. 140

COMMONWEALTH v. David N. TAVARES.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 6, 1981.

Decided Jan. 29, 1982.

Willie J. Davis, Boston (Mary D. Gearin, Brighton, with him), for defendant.

Lance J. Garth, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

ABRAMS, Justice.

After a jury trial, the defendant David Tavares was convicted of murder in the first degree. ¹ He was sentenced to the mandatory term of life imprisonment. ² Tavares appeals. He claims error concerning (1) the denial of his motion to suppress statements made by him to police officials; (2) the instructions to the jury; (3) the denial of a motion for mistrial based on juror misconduct; ³ and (4) a variance between the Commonwealth's proof and its bill of particulars. Tavares also requests that we exercise our power under G.L. c. 278, § 33E, and reduce the verdict to a lesser degree of guilt. We conclude that there was no reversible error. However, our review under § 33E indicates that "the verdict of conviction of murder in the (first) degree was against the weight of the evidence considered in a large or nontechnical sense ...," Commonwealth v. Bowman, 373 Mass. 760, 765, 370 N.E.2d 435 (1977), and we order a reduction of the verdict to murder in the second degree.

We summarize the facts. On the evening of May 24, 1979, the defendant, age seventeen, was drinking in the third base dugout of Dias Field in New Bedford. He was accompanied by a friend Bruce Bookman, age seventeen, and a cousin Keith Tavares (Keith), age twenty. While in the dugout, the three collectively consumed twelve twelve-ounce cans of beer and a fifth of vodka. They decided to obtain more beer, but were fifty cents short of the purchase price. One of them approached the victim, Jesse Aranjo, as he was passing by the dugout, and asked him for fifty cents. The victim was not known to any of the three men in the dugout.

The victim responded by insulting them. He threatened to return with members of his motorcycle gang to beat them up. A fight ensued between the three men and the victim. The victim was subdued, and the defendant, aided by Keith and Bookman, removed the victim's clothing and took him into the dugout where they left him. The defendant, Keith, and Bookman then left the ballpark, the defendant taking the victim's jacket, which he later discarded, and one dollar, which he later lost. The defendant returned to the ballpark shortly thereafter to retrieve a comb he had lost during the fight and saw the victim in the dugout, trying to get up.

1. The motion to suppress. The body of Jesse Aranjo was discovered at approximately 12:30 P.M. on May 25, 1979. At approximately 2 A.M. on May 26th, the defendant and a female companion went to the police station and asked the officer in charge if the police were looking for him. The officer replied that his records did not indicate that the police were looking for a David Tavares. The officer recommended that Tavares call back later in the day.

At about 10:30 A.M., the police went to Tavares's house and asked him if he would voluntarily come to the station to speak with them. Tavares agreed to go to the station. At that time, Tavares knew of Aranjo's death. He also knew that the police wanted to speak to him about Aranjo. At the station, Tavares made some incriminating statements. ⁴

Prior to trial, the defendant moved to suppress those statements. The defendant claims that as a result of his youth and inexperience, he made these statements without a knowing and intelligent waiver of his Miranda rights as required by the Fifth and Sixth Amendments to the Constitution of the United States. At the hearing on his motion, the defendant did not deny that he made the statements, nor did he claim that the police used force, intimidation, or trickery to obtain the statements. He also did not allege that the police denied him food, drink, or sleep or that the police used physical brutality. Further, he did not claim that the police failed to advise him of his constitutional rights. The basis for Tavares's motion was that the statements were coerced because of his lack of experience and his youthful fear of authority.

After the suppression hearing, the judge made the following findings of fact. At the police station, the defendant was repeatedly advised of the Miranda rights. The defendant indicated to police that he understood these warnings. Before making any statements, the defendant signed a card acknowledging that he understood his rights. Moreover, the judge found that, since the defendant had been arrested on prior occasions, he was familiar with these procedures.

From listening to a tape recording of the interrogation, the judge found no evidence of any threats, inducements, or promises of reward. The tapes indicated that the defendant was coherent and appeared to understand what was said during the interrogations. The judge concluded that Tavares knowingly and voluntarily waived his constitutional rights. The judge also concluded that after the waiver the defendant intelligently and voluntarily answered the questions put to him by the police.

The defendant challenges the judge's findings as erroneous. He claims that his youth and inexperience vitiated his waiver, ⁵ and that his statements were not voluntary. To support his argument, the defendant cites several studies that have suggested that youths are particularly susceptible to the inherent coerciveness of interrogations. ⁶ See Gage, Protecting the Juvenile Witness, 17 J. of Family L. 439, 451 (1978); Note, Interrogations in New Haven, The Impact of Miranda, 76 Yale L.J. 1519, 1577 (1967). Relying on these studies, the defendant claims that because of his special sensitivity to police pressure in his first statement to the police, he took more than his share of responsibility for the fight with Aranjo. ⁷

"In reviewing a trial judge's determination that a voluntary waiver was made, the judge's subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted." Commonwealth v. Santo, 375 Mass. 299, 303, 376 N.E.2d 866 (1978). See Commonwealth v. Tabor, 376 Mass. 811, 822, 384 N.E.2d 190 (1978); Commonwealth v. Murphy, 362 Mass. 542, 550, 289 N.E.2d 571 (1972) (Hennessey, J., concurring). Although the judge's ultimate findings are open for review, "a finding of voluntary waiver is 'entitled to substantial deference by this court.' Commonwealth v. White, 374 Mass. 132, 138 (371 N.E.2d 777) (1977), aff'd, 439 U.S. 280 (99 S.Ct. 712, 58 L.Ed.2d 519) (1978)." Commonwealth v. Tabor, supra. However, "(o)ur appellate function requires that we make our own independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found ....' Brewer v. Williams, 430 U.S. 387, 403 (97 S.Ct. 1232, 1242, 51 L.Ed.2d 424) (1977)." Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977). See Commonwealth v. Wilborne, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 59, 69, 415 N.E.2d 192.

A judge's finding that the defendant knowingly and voluntarily waived his Miranda rights is not the only prerequisite to admissibility. A judicial determination of voluntariness is also constitutionally required. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). "In determining admissibility in the first instance the judge is undoubtedly bound by the dictates of Miranda, i.e., if its prerequisites have not been fully met, the confession is without more involuntary as a matter of law, hence inadmissible and insubmissible. But an incriminating statement may also be inadmissible and insubmissible because not factually shown to have been freely and voluntarily given, even though the requirements of Miranda have been fully met." Coyote v. United States, 380 F.2d 305, 309-310 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967). See Eisen v. Picard, 452 F.2d 860, 863-865 (1st Cir. 1971).

At the suppression hearing, the defendant offered no evidence that he was particularly susceptible to police pressure. There was no evidence that he had been drinking in the hours immediately before he spoke to the police. Nor was there any evidence of mental impairment or the use of drugs. See Commonwealth v. Wilborne, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 59, 70-71, 415 N.E.2d 192. Compare Commonwealth v. Hosey, 368 Mass. 571, 334 N.E.2d 44 (1975); Commonwealth v. Daniels, 366 Mass. 601, 321 N.E.2d 822 (1975). Indeed, the record indicates that he had completed the tenth grade, had been accepted into the armed forces of the United States, and was married and the father of a child.

The record offers no explanation why the defendant first said that he alone kicked the victim. However, there may be explanations for the defendant's conduct other than the susceptibility of youth. For example, the defendant may have been acting under a code of silence, with a foolish sense of braggadocio or from family loyalty to his cousin Keith. In any event, we are not free to speculate on matters outside the record. Cf. Commonwealth v. Ferguson, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1551, 1555-1557, 422 N.E.2d 1365.

"A minor may waive constitutional rights and make a confession which is admissible against him." Commonwealth v. Daniels, 366 Mass. 601, 605, 321 N.E.2d 822 (1975), and cases cited. Compare Commonwealth v. Davis, 380 Mass. 1, --- - ---, Mass.Adv.Sh. (1980) 555, 558-560 401 N.E.2d 811; Commonwealth v. Daniels, supra, 366 Mass. at 606-608, 321 N.E.2d 822, with Commonwealth v. Meehan, 377 Mass. 552, 567-568, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980). Whether the facts support the admission of statements made by a minor "must be determined by an examination of 'the totality...