Com. v. Waite

• Citation: 422 Mass. 792,665 N.E.2d 982
• Parties: COMMONWEALTH v. Bruce Oliver WAITE.
• Decision Date: 31 May 1996
• Court: United States State Supreme Judicial Court of Massachusetts

Page 982

665 N.E.2d 982

422 Mass. 792

COMMONWEALTH v. Bruce Oliver WAITE.

Supreme Judicial Court of Massachusetts Hampden.

Argued Nov. 9, 1995.

Decided May 31, 1996.

John M. Thompson, Springfield, for defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

At approximately 9:30 A.M. on April 17, 1990, the defendant, Bruce Oliver Waite, drove to his sister's house in Springfield. There, his niece, Stacy Green, asked for a ride to a nearby bus stop. Waite agreed. While they were in his Jeep, Waite asked Green if she knew of any boy friend that Waite's estranged wife, Joan Waite, might have. Green replied she knew of no one. Waite stated that he had seen Joan Waite's new boy friend a few days earlier, driving by and acting "like a smartass." Waite told Green that he "had something" for the boy friend. Shortly after 9:30 A.M., Waite and Green returned to his sister's house. Waite attempted to persuade Claude Green, Stacy's cousin, to go out for a drink, but he declined. Claude Green later testified that he saw Waite pacing in the house, then heard a rustle of papers in a bedroom where a rifle was kept, and finally heard Waite driving away in his Jeep.

Around 10 A.M., Waite arrived at the local K-Mart store where Joan Waite worked. According to store employees, Waite walked around the store apparently looking for someone. He stopped to browse through fishing gear and rifle ammunition. At approximately 11 A.M., Waite approached a cashier and asked about Joan. The cashier did not know Joan by name, but she told Waite that Joan was not working that day. Waite left the store.

There was some evidence that Waite loitered in the K-Mart parking lot for some time. Joan was in fact working that day, and had punched out at 12:55 P.M. to go to lunch with her boy friend, Homer Gadson. Four witnesses reported events beginning at 1 P.M. on Fernbank Road, behind the Eastfield Mall in Springfield. Waite's Jeep Scrambler was seen bumping into another automobile and forcing it off the road. In that automobile were Joan Waite and her boy friend. After the automobile hit a tree, Waite pulled up nearby. Gadson approached Waite's Jeep on foot. Waite fired a rifle (the same rifle usually kept in Waite's sister's home) and wounded Gadson. Waite then emerged from his Jeep, went up to the other vehicle, and fired a rifle shot that hit Joan in the head and killed her. As Gadson attempted to flee, Waite pursued him into a nearby field. Gadson tripped and fell to the ground. Waite then shot him in the head from close range and killed Gadson. Waite unhurriedly walked back to his Jeep and drove away.

These facts essentially were uncontroverted. ¹ Most of the trial involved questioning by the prosecution and the defense, of virtually every witness, as to any evidence that Waite was intoxicated before and during the time of the killings. There was evidence that Waite had been drinking since 8 A.M. that morning. However, other witnesses testified to seeing Waite before the crime, or driving about after the killings. These witnesses related their impressions as to Waite's unhampered ability to operate a vehicle. Several of Waite's relatives provided a history of Waite's alcoholism. The defense put on two experts who testified, both in general and with respect to Waite, regarding the effects of alcoholism and intoxication on his mental state.

After a six-day trial a Hampden County jury returned two guilty verdicts of murder in the first degree. Waite appeals. We affirm. ²

1. Post-Miranda interrogation. Waite's primary strategy at trial was to show that he had a mental impairment stemming from a combination of voluntary intoxication at the time of the killings, borderline retardation, and brain damage caused by alcoholism. The contention was that he could not form the requisite mental state to commit premeditated and deliberate murder.

The prosecution produced, in its case-in-chief, evidence that Waite was neither irrational nor intoxicated, and therefore was capable of cold, calculated murder. Several witnesses testified to Waite's actions and appearance in the time before and during the killings. Three Springfield police officers described subsequent events around the time of arrest and booking. Evidence of these postcrime events was intended to show that Waite was fully rational at the time of arrest, implying that he was rational (and could premeditate) at the time of the killings.

The testimony of the arresting officer, Sergeant Fournier, forms the first part of what the defendant claims was impermissible use of his post-Miranda silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The officer testified that while he was proceeding to the scene of the crimes he received a report that the suspect's vehicle was on Rosewell Street. When that radio call came, Sergeant Fournier was on a street adjacent to Rosewell. He changed his destination. He was the first officer to arrive at Rosewell Street. Stepping from his cruiser he saw Waite getting out of the Jeep that had been identified by witnesses to the shootings. Fournier ordered Waite to get down on the ground. The remainder of the testimony, describing the arrest and Waite's reactions thereto, is recounted in the margin. ³

The prosecution called as its next witness Springfield police Detective O'Connor, who helped transport the defendant to the police station. Detective O'Connor testified to Waite's sobriety and ability to understand and follow directions given by the police at the station. In the course of his testimony Detective O'Connor related that the defendant had no trouble understanding directions as police led him to an interrogation room. Then the prosecutor asked, "How long was he in that room that you next brought him to?" The judge sustained an objection to this question, and the prosecutor did not ask any more questions related to the interrogation room.

One final incident allegedly contained reversible Doyle error. In its closing the defense argued that Waite's mental impairment prevented him from being able to commit premeditated murder. The prosecution in turn argued that Waite's actions around the time of the killings evidenced a calculated plan and rationality consistent with premeditation. Part of this argument, Waite contends, improperly commented on his right to remain silent.

A defendant's silence after the police have given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-479, 86 S.Ct. 1602, 1624-1631, 16 L.Ed.2d 694 (1966), may not be used against that defendant. Doyle, supra at 617, 619, 96 S.Ct. at 2244-2245, 2245. So far as the Federal Constitution is concerned, the government is barred from using post-Miranda silence against a defendant, even to impeach his trial testimony, for, as Doyle holds, to do so would "penalize" the invocation of the right to silence. ⁴ Of similar import is our holding in Commonwealth v. Person, 400 Mass. 136, 140, 508 N.E.2d 88 (1987), that it was reversible error for a trial judge to allow a prosecutor to argue in rebuttal that the defendant's consciousness-of-innocence defense was not consistent with the defendant's request for a lawyer in response to the Miranda warnings. Id. [422 Mass. 798] at 141-142, 508 N.E.2d 88. Compare Commonwealth v. LeFave, 407 Mass. 927, 939, 556 N.E.2d 83 (1990) (prosecutor has "right of retaliatory reply" that can justify use of some otherwise prejudicial evidence or closing argument).

The sine qua non of a Doyle violation is the government's use of the defendant's silence against him. Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 3107-3108, 97 L.Ed.2d 618 (1987). Still, in a few situations evidence of silence is properly admitted because it is not "used against" the accused. See Commonwealth v. Habarek, 402 Mass. 105, 520 N.E.2d 1303 (1988). In Habarek the prosecution had the arresting officer testify at trial. The officer properly had given Miranda warnings to the accused, and the accused in turn gave answers to some initial police questions. At some point during interrogation the defendant reasserted his right to remain silent and ended the questioning. Id. at 109, 520 N.E.2d 1303. See Miranda, supra at 473-474, 86 S.Ct. at 1627-1628; Commonwealth v. Lewis, 374 Mass. 203, 205, 371 N.E.2d 775 (1978). The officer so testified, but we noted that evidence of the reassertion of rights was not offered to promote an inference of guilt or to impeach the defendant's story. Rather, one statement on direct examination simply put an abruptly concluded conversation in context. Redirect testimony regarding silence merely responded to cross-examination that tried to portray the silence itself as evidence of improper interrogation techniques of the police. Habarek, supra at 110, 520 N.E.2d 1303.

The questioning here was similar. The testimony regarding Waite's silence developed from proper testimony about Waite's statements. The first statement fell within the public safety exception of New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), and Waite initiated the conversation that occurred before Miranda warnings were given. As to post-Miranda statements, Sergeant Fournier conducted a short interrogation that, without an explanation as to why it ended, would appear stilted and might confuse the jury. In contrast to the right to present a defense, see, e.g., Person, supra, a defendant has no right to create confusion. When the defendant has temporarily waived the right to silence, testimony regarding the cessation of questioning is appropriate to prevent such confusion. There is no prejudice because nothing to which the defendant is entitled is lost.

We do not suggest that direct testimony during the government's case is appropriate in every case in which a defendant initially answered questions and then...