Com. v. Wallen

• Decision Date: 16 September 1993
• Docket Number: No. 92-P-530,92-P-530
• Citation: 619 N.E.2d 365,35 Mass.App.Ct. 915
• Parties: COMMONWEALTH v. Dean T. WALLEN.
• Court: Appeals Court of Massachusetts

Page 365

619 N.E.2d 365

35 Mass.App.Ct. 915

COMMONWEALTH v. Dean T. WALLEN.

No. 92-P-530.

Appeals Court of Massachusetts Middlesex.

Argued June 4, 1993.

Decided Sept. 16, 1993.

Lawrence R. Glynn, Cambridge, for defendant.

Thomas F. Reilly, Dist. Atty., Barbara F. Berenson, Asst. Dist. Atty., for Com.

Before KASS, JACOBS and IRELAND, JJ.

RESCRIPT.

The defendant appeals from his conviction of murder in the second degree following a trial in the Superior Court on an indictment charging him with the murder in the first degree of Carlos Perez on January 18, 1990. He principally claims evidentiary errors and error in the denial of his motions for suppression of statements made to the police and for a required finding of not guilty. We affirm.

1. The motion to suppress statements. Although a motion judge ordered suppression of the defendant's statements made to the police after 4:45 A.M. on January 19, 1990, because the "totality of the circumstances of his interrogation by the police had changed," he permitted statements made before that time to stand. The defendant sought to have his statements made between 2:10 A.M. and 4:45 A.M. also suppressed, on the grounds that his mental retardation and intoxication rendered them involuntary, and because he was psychologically coerced by the police who subjected him to lengthy questioning, thus overbearing his will. He also claimed these factors, principally his limited mental ability, rendered his purported waiver of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights invalid.

The motion judge found, after a hearing, that the defendant agreed to give the police, who arrived at the homicide scene at approximately 11:20 P.M. on January 18, 1990, additional details of what he saw prior to the victim's stabbing. He claimed to have seen the victim talking with a man near the crime scene and later to have found the victim lying on the ground. Lawrence Scott, whom the defendant had enlisted to aid the victim, also agreed to go to the police station. They were interviewed separately. Beginning at 11:55 P.M., the defendant gave a detailed statement which he signed approximately ninety minutes later, after it had been reduced to typewritten form. The judge found the defendant was not then in custody, not restrained in any way, and was not given any Miranda warnings. As a result of differences between statements made by the defendant and Scott, the police decided to interview the defendant again at approximately 1:45 A.M. Finding substantial changes from his earlier statement, the officers advised the defendant of his Miranda rights at 2:10 A.M. He agreed to continue to talk to the police. Following the officers' observation of what they suspected was blood on his boots, the defendant agreed to have his clothing and person tested and signed a consent form after being advised of his rights. At police request, he drew a diagram of the scene. Soon after 3:00 A.M., he was informed that his hands tested positive for presence of blood and that "he could not have gotten blood on his hands if the victim had been injured in the manner [he] described...." The defendant was again advised of his Miranda rights and agreed to continue to talk with the police. He gave an additional statement, including information that he had taken medication for a toothache some sixteen hours earlier and that he was mentally retarded. Several questions were then asked by the police to determine whether the defendant understood his rights. His responses were "good, clear and exact." "After satisfying themselves that [the defendant] was able to understand his rights," the officers allowed him to complete another statement, which was reduced to typewritten form and which he read and signed at about 4:45 A.M. About five minutes later, an officer returned to challenge the manner in which the defendant indicated the victim's wounds were inflicted, but the interview became confrontational and was terminated at about 5:15 A.M., when the defendant was arrested and charged with the victim's murder.

The judge properly allowed the suppression of the defendant's oral accounts made after his second typewritten statement and properly denied the motion to suppress that statement and the statements preceding it. There is no indication that the defendant's presence at the police station was anything but voluntary or that the initial procedures employed by the police were other than proper attempts at gathering information from a willing witness who was not in custody. No Miranda warnings were required in these circumstances. Commonwealth v. Bryant, 390 Mass. 729, 736-737, 738, 459 N.E.2d 792 (1984). The defendant asserts, without challenging the judge's subsidiary findings, that his intoxication and mental retardation, together with allegedly coercive circumstances of his questioning, amounted to an overbearing of his will rendering involuntary both his statements and the waiver of his Miranda rights.

Based on the detailed observations of an officer who appeared at the scene and another who participated in the questioning of the defendant, the judge properly could conclude that he was not under the influence of alcohol or drugs. Nothing appears from the record to indicate that the defendant was unable to understand any of the procedures. While the judge found that the defendant has an I.Q. between sixty and seventy, attained only third or fourth grade reading and writing levels, and is able to recognize few words of more than three syllables, he also found he could read newspapers and write letters. "[A]n adult with a diminished or subnormal mental capacity may make an effective waiver of his rights and render a voluntary, knowing and admissible confession." Commonwealth v. Daniels, 366 Mass. 601, 606, 321 N.E.2d 822 (1975), and authorities cited. See Commonwealth v. Medeiros, 395 Mass. 336, 347, 479 N.E.2d 1371 (1985). The judge's findings reveal that he used the "special care" required, see Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224 (1948), in analyzing both the "characteristics" of the defendant and the "details of the interrogation." See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The defendant's statements reflected various efforts to exculpate himself, and the record does not support the claim that his will was broken. See Commonwealth v. Davis, 403 Mass. 575, 581, 531 N.E.2d 577 (1988). Also, in the circumstances found by the judge, he correctly concluded that the defendant understood his rights and that he voluntarily, knowingly, and intelligently waived them. See Commonwealth v. Medeiros, supra at 347-348, 479 N.E.2d 1371; Commonwealth v. Libran, 405 Mass. 634, 638-639, 543 N.E.2d 5 (1989). The judge properly considered the separate questions of the validity of the defendant's waiver of his rights and the voluntariness of his statements given to the police. Commonwealth v. Garcia, 379 Mass. 422, 428, 399 N.E.2d 460 (1980). His subsidiary findings are amply supported by the evidence, and there is no clear error. See Commonwealth v. Harmon, 410 Mass. 425, 430-432, 573 N.E.2d 490 (1991).

2. The motion for a required finding of not guilty. Broadly alleging the Commonwealth's case depended upon "unreasonable inferences, conjecture, and surmise," the defendant claims there was no competent evidence to substantiate the theory that he possessed a knife on the night the victim was stabbed, or that he stabbed him, and that the testimony, including that of a witness stating sh...