Com. v. Wanderlick

• Decision Date: 30 November 1981
• Citation: 12 Mass.App.Ct. 970,428 N.E.2d 328
• Parties: COMMONWEALTH v. Blaine R. WANDERLICK.
• Court: Appeals Court of Massachusetts

Page 328

428 N.E.2d 328

12 Mass.App.Ct. 970

COMMONWEALTH v. Blaine R. WANDERLICK.

Appeals Court of Massachusetts, Worcester.

Argued Oct. 13, 1981.

Decided Nov. 30, 1981.

Peter G. DeGelleke, Boston, for defendant.

William E. Loughlin, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, CUTTER and KASS, JJ.

RESCRIPT.

The defendant appeals from his convictions of kidnapping (G.L. c. 265, § 26), and rape (G.L. c. 265, § 22). The case was tried to the jury under the alternative theories that the defendant either kidnapped and raped the victim himself, or assisted another man in kidnapping and raping her. On appeal, he claims (1) that a statement to the police in which he confessed his guilt was improperly admitted in evidence and (2) that remarks by the judge within the hearing of the jury, to the effect that a joint venture had been established, amounted to an improper direction of a verdict on that issue. We affirm the convictions.

1. The defendant's contentions with respect to his statement to the police rest on facts which are said to negate a knowing and intelligent waiver of his constitutional rights. These facts are that he (1) was twenty years old, (2) was frightened, confused, and in an excited emotional state throughout his questioning by the police, and (3) is of below normal intellect. The judge denied the motion to suppress but made no explicit findings of fact, either from the bench or by way of written memorandum. Because the judge has retired, the case cannot be readily remanded for him to make findings at this time. See Commonwealth v. Forrester, 365 Mass. 37, 45, 309 N.E.2d 190 (1974). See also Commonwealth v. Worlds, Mass.App.Ct.Adv.Sh. (1980) 229, 232 n.4, 399 N.E.2d 1121. Nevertheless, the judge's denial of the motion implies findings that the defendant understood his Miranda rights, that he knowingly and intelligently waived them and chose to give the police a written statement, and that the statement was made by him freely and voluntarily. Commonwealth v. Garcia, Mass.Adv.Sh. (1980) 21, 29, 399 N.E.2d 460. We have examined the evidence presented at the voir dire on the motion to suppress with "special care" (Haley v. Ohio, 332 U.S 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 (1948)) and are able to conclude that these implicit findings are supported by the evidence. See Commonwealth v. Williams, Mass.Adv.Sh. (1979) 1431, 1438-1440 & n.4, 391 N.E.2d 1202; Commonwealth v. Gaulden, Mass.Adv.Sh. (1981) 1123, 1127, 420 N.E.2d 905. Factors such as the age of the defendant or the stress inherent in a custodial interrogation will not automatically invalidate a waiver. See Commonwealth v. Hooks, 375 Mass. 284, 289, 376 N.E.2d 857 (1978); Commonwealth v. Brady, Mass.Adv.Sh. (1980) 597, 602, 410 N.E.2d 695; Commonwealth v. Wilborne, Mass.Adv.Sh. (1981) 59, 70, 415 N.E.2d 192. Likewise "an 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). See Commonwealth v. White, 362 Mass. 193, 196, 285 N.E.2d 110 (1972); Commonwealth v. Harris, Mass.App.Ct.Adv.Sh. (1981) 77, 85, 415 N.E.2d 216. A judgment on the effectiveness of a waiver is to be based on the totality of the circumstances, including the testimony concerning the conduct of the defendant, his mental condition, his age, and the details of the interrogation. Commonwealth v. Hosey, 368 Mass. 571, 574, 334 N.E.2d 44 (1975). Commonwealth v. Hooks, 375 Mass. at 289, 376 N.E.2d 857. There was evidence that the defendant attended public schools and that although he was in special classes, he completed the eleventh grade before leaving school. There was evidence that the defendant had obtained a driver's license and that he had held a job. A police officer, who had earlier interrogated the defendant about his involvement in a rape in Greenfield (to which the defendant ultimately pleaded guilty), testified that the defendant was read his constitutional rights one at a time from a sheet of paper; that the defendant expressly stated that he understood each right and affixed his initials beside each one on the paper after it was read; and that the defendant, before signing it, reviewed his entire statement for typographical errors, inaccurate facts, and facts which he did not wish included. Another police officer, who interrogated the defendant later the same night about the present crimes, testified that the defendant indicated that it was unnecessary to repeat his Miranda rights because he had "heard the whole thing before and ... he understood them." When the officer persisted in stating all the warnings, he observed that the defendant "appeared to be with me and sometimes ahead of me" in his knowledge of the rights. Both police officers were satisfied that the defendant understood the nature of his rights. The second officer also testified that the defendant appeared to be an average young man possessed of an average vocabulary. The defendant admitted during his cross-examination at the voir dire that he understood that his right to silence allowed him to refuse to talk to the police. He also stated that he knew that he could have a lawyer at the interrogation if he wanted one. Compare United States v. Warden, Illinois State Penitentiary, 566 F.2d 28, 30 (7th Cir. 1977). There was no evidence of coercion, duress, or improper suggestions by the police and no evidence that the defendant was under the influence of either drugs or...