Com. v. Ward

• Decision Date: 08 April 1992
• Citation: 412 Mass. 395,590 N.E.2d 173
• Parties: COMMONWEALTH v. Steven WARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 173

590 N.E.2d 173

412 Mass. 395

COMMONWEALTH v. Steven WARD.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 6, 1992.

Decided April 8, 1992.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for defendant.

Kevin J. Mahoney, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

WILKINS, Justice.

After this court upheld the transfer of the defendant from the juvenile to the adult system (Ward v. Commonwealth, 407 Mass. 434, 554 N.E.2d 25 [1990] ), a jury convicted him of murder in the first degree by reason of extreme atrocity or cruelty. In this appeal, Ward challenges (1) the denial of his motion to suppress certain statements that he made to the police and (2) the judge's instruction concerning the consequences of a finding that the defendant was not guilty by reason of his lack of criminal responsibility. Ward also seeks relief under G.L. c. 278, § 33E (1990 ed.), asking us to reduce the verdict to murder in the second degree.

We need not set forth the circumstances of the victim's death, which appear in our earlier opinion (see id. at 435-436, 554 N.E.2d 25), in order to deal with the first two issues on appeal. We shall present certain facts when we discuss Ward's claim for relief under § 33E. We affirm the conviction and decline to reduce the verdict of murder in the first degree.

1. Ward argues that his motion to suppress statements that he made to the police should have been allowed because his interrogation by the police in the early hours of the day after the victim's death was not preceded by a knowing and intelligent waiver of his constitutional rights. Ward had attained the age of sixteen approximately two weeks before the victim's death.

Ward asserts that his statements should have been suppressed because he had no meaningful opportunity before waiving his Miranda rights to confer with his mother, who was present at the interrogation. See Commonwealth v. A Juvenile, 389 Mass. 128, 131, 449 N.E.2d 654 (1983). The police did not tell the defendant and his mother that they had the right to confer in private. The defendant cites authority in support of the right of a minor to have a private consultation with a parent before waiving Miranda rights. See Hall v. State, 264 Ind. 448, 452, 346 N.E.2d 584 (1976) ("a meaningful consultation can only occur in the absence of the neutralizing pressures which result from police presence"); Commonwealth v. Roane, 459 Pa. 389, 396, 329 A.2d 286 (1974) (police did not afford defendant's mother an opportunity to advise son privately about his constitutional rights); In re E.T.C., Juvenile, 141 Vt. 375, 379-380, 449 A.2d 937 (1982) (meaningful consultation can only occur in the absence of police presence).

The judge found that a police sergeant read Miranda warnings to Ward and his mother at the Lowell police station. Ward and his mother then read those rights, and each indicated that he or she understood them. Each signed a Miranda card. The defendant's mother said she thought the defendant understood his rights. The police asked the defendant's mother if she wanted to discuss the defendant's rights with her son. She looked at the defendant, and he indicated that it was "okay." After that, Ward gave two statements to the police while his mother was present. The second was substantially more incriminating than the first. The judge ruled that beyond a reasonable doubt the defendant knowingly, voluntarily, and intelligently waived his Miranda rights.

We adopt no fixed rule that a minor's opportunity to have a meaningful consultation with an interested adult (Commonwealth v. A Juvenile, supra 389 Mass. at 134, 449 N.E.2d 654) requires that the police expressly inform the minor and the adult that they may confer in private. Surely, the police may not properly deny them that right. It was sufficient in this case, however, that the police advised them of the right to confer, and the mother and son decided that no consultation was necessary. For this reason, the authorities on which the defendant relies are not on point. Bluitt v. State, 269 Ind. 438, 443-444, 381 N.E.2d 458 (1978) (confession voluntary where neither minor nor father requested opportunity to speak privately). We would have a different case, of course, if the mother or the son had stated a desire to discuss the matter and the police had not allowed them to do so in private. Here, however, the defendant and his mother were offered the opportunity for a consultation (Commonwealth v. Berry, 410 Mass. 31, 35, 570 N.E.2d 1004 [1991] ), and they declined the offer.

2. The defendant challenges the judge's instruction regarding the consequences of a jury verdict of not guilty because of a lack of criminal responsibility (in common parlance, by reason of insanity). His challenge is based solely on a claim that the charge created a substantial likelihood of a miscarriage of justice. Not only did the defendant not object to the charge, but he requested the very charge that the judge gave. ¹

The evidence raised the question whether the defendant was criminally responsible for his conduct. The judge described the standard that the jury should use for determining whether the Commonwealth had proved that the defendant was criminally responsible. The defendant was entitled, on request, to a further instruction concerning the consequences of a verdict of not guilty by reason of the defendant's insanity. Commonwealth v. Mutina, 366 Mass. 810, 816-817, 823 n. 12, 323 N.E.2d 294 (1975). Such an instruction may be a mixed blessing for a defendant. Id. at 831-833, 323 N.E.2d 294 (Quirico, J., dissenting). The instruction requested here was not identical to that requested in the Mutina case, but it is substantively similar to that instruction. Id. at 811 n. 1, 323 N.E.2d 294. ² It appears to have none of the defects that the Appeals Court noted in the Mutina instruction given in Commonwealth v. Loring, 14 Mass.App.Ct. 655, 657-660, 441 N.E.2d 791 (1982).

We have no confidence that any particular charge on the consequences of a verdict of not guilty by reason of insanity will provide just the right information to the jury. We have left the subject of what, if any, instruction to request to the judgment of individual defendants. Defense counsel elected here to request a particular instruction, in a form somewhat different from that requested in the Mutina case. There is no claim that, in doing so, his conduct fell below the standard of an ordinary lawyer. Moreover, we see no basis for concluding that the requested charge created a substantial likelihood of a miscarriage of justice.

3. The defendant argues that his circumstances warrant a reduction in the verdict from murder in...