Com. v. Waters

• Decision Date: 23 April 1987
• Parties: COMMONWEALTH v. Kenneth WATERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 859

506 N.E.2d 859

399 Mass. 708

COMMONWEALTH v. Kenneth WATERS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Jan. 5, 1987.

Decided April 23, 1987.

Harvey R. Peters, Boston, for defendant.

Karen J. Kepler, Asst. Dist. Atty., for Commonwealth.

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

HENNESSEY, Chief Judge.

The defendant appeals from his convictions of murder in the first degree and armed robbery. The defendant's principal contentions are that the judge failed to conduct voir dire examinations to determine the voluntariness of the defendant's inculpatory statements made to private persons, failed to instruct the jury properly on voluntariness, erred in admitting a "mug shot" of the defendant and photographs of the victim's body, and erred in denying the defendant's motion for a new trial based in part on deprivation of his right to testify at trial. The defendant also urges this court to exercise its power under G.L. c. 278, § 33E (1984 ed.), to grant him a new trial. We conclude that there was no error, and decline to grant the relief requested under § 33E. We affirm.

The victim, Katharina Reitz Brow, was found brutally murdered in her "trailer" home in Ayer on May 21, 1980. She had been killed between 7:10 A.M., when her husband had left for work, and 10:45 A.M., when her body was found. She had been stabbed thirty times, with five stab wounds penetrating her heart. In addition, she had been struck repeatedly with a blunt instrument. The medical examiner testified that the victim probably had died closer to 7:10 A.M. than 10:45 A.M., had been alive when struck with the blunt instrument, had been alive between ten and twenty minutes after being stabbed, and had been conscious approximately half that time. There was no sign of forced entry into her home, but there were many signs of a struggle. The victim's purse, containing cash and jewelry, and which the victim normally kept in the linen closet, was missing, as was a large sum of cash the victim kept between some sheets in the linen closet. There were no other signs that the house had been searched or that anything else had been taken. The murder weapon, a knife, was found in a wastebasket. ¹

At the time of the murder, the defendant lived in a house near the victim's, and worked at the Park Street Diner, where the victim was a regular customer. Adi Ogden, a close friend of the victim who also worked at the Park Street Diner, and Eugenie Brow, the victim's daughter-in-law, testified that the victim commonly carried a large amount of cash in her wallet, which people at the diner had seen, and that the victim had been told several times in the diner that she should not carry so much cash. Both Adi Ogden and Eugenie Brow testified that the victim kept a large sum of cash in her linen closet between some sheets.

The defendant's former girl friend, one Marsh, who lived with him at the time, testified that, approximately one week before the murder, the defendant stated to her that a German woman had a lot of money in her trailer, and that he would like to get that money. She also testified that, at approximately 10 P.M. on May 20, 1980, the defendant dressed in his work clothes, said he was going to work, and left in his car. She tried to telephone him at the diner later that evening, but was told he was not working. She testified that the defendant returned home the next morning, May 21, 1980, in the late morning or early afternoon dressed in the same clothes. She stated she noticed a scratch on his face, and that he told her it was none of her business and went to bed. She later saw police cars at the victim's home. She testified that, when she mentioned this to the defendant, he replied that, "[i]f any police came, tell them he wasn't there." The defendant and Marsh moved to Providence, Rhode Island, at the end of June, 1980. In the third week of July, Marsh testified, she and the defendant had an argument, during which she asked him whether he had "killed that woman back there." The defendant, who had been drinking, responded, "Yeah, what's it to you?" Marsh moved to Worcester the next day.

One Perry, another former girl friend of the defendant, testified that she had met the defendant during the summer of 1980. On several occasions when he had been drinking, she testified, the defendant stated that he had been picked up for murder, but that "they couldn't pin it on him." On another occasion in late winter, 1982, Perry testified, the defendant was drunk and stated that he had killed the "old German bitch"; had stabbed her, and had taken her money and jewelry.

Adi Ogden testified that the defendant had come into the diner a few weeks after the murder while Ogden was working. The defendant said that he hated the victim because she had caused him to be sent to reform school for breaking into her house when he was ten years old. Ogden told the defendant that she was glad she had a German shepherd dog to prevent anyone from entering her house. She testified that the defendant responded, "dog or no dog, when he wants to kill, he will kill." Ogden also testified that the defendant returned to the diner approximately five or six weeks after the murder, and offered to sell her a ring and a necklace. Ogden testified that she recognized the ring and necklace as gifts she had given the victim several years before, and paid the defendant $5 for the ring, which she then took to the police.

The defendant, who did not testify at trial, offered evidence from other witnesses which he says establishes that he had gone to work on May 20, 1980, had worked a double shift, and had appeared in Ayer District Court on the morning of May 21, 1980, on a charge of assaulting a police officer. In addition, the defendant introduced testimony attempting to impeach the credibility of the Commonwealth's witnesses.

Prior to trial, the defendant requested that the judge conduct a voir dire examination to determine the voluntariness of the statements the defendant made to Marsh and Perry. The judge declined to conduct a voir dire. The jury found the defendant guilty of murder in the first degree, based on both extreme atrocity or cruelty and felony murder, and guilty of armed robbery. The defendant appealed from his convictions, and subsequently filed a motion for a new trial in this court, which we remanded to the Superior Court, staying the appeal pending action on that motion. The trial judge denied the motion.

1. The defendant argues that the judge erred in failing to conduct a voir dire examination to determine the voluntariness of statements the defendant made to Marsh and Perry. The defendant asserts that, because there was evidence that the defendant was intoxicated when he made the inculpatory statements, the judge was required to conduct a voir dire examination. See Commonwealth v. Allen, 395 Mass. 448, 456, 480 N.E.2d 630 (1985). The defendant does not contend that Marsh and Perry were in any sense agents of the police, or that either of them plied him with liquor to elicit a statement. In Allen, this court stated: "When the voluntariness of a defendant's statements to private citizens is an issue, the judge should conduct a voir dire to determine the voluntariness of the statements." Id. at 456, 480 N.E.2d 630. ² Allen was decided after the defendant's trial. Therefore, we must determine whether the rule announced in Allen should be applied retroactively.

In Commonwealth v. Breese, 389 Mass. 540, 541, 451 N.E.2d 413 (1983), we articulated the standards to be applied to determine whether an announced rule will be applied retroactively: "[W]e first must resolve whether the decision announced a new rule. Decisional law usually is retroactive. When a decision announces a new rule, however, the issue arises whether it will be applied only prospectively." To be applied only prospectively, a decision must "establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed...." Id. at 542, 451 N.E.2d 413, quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971).

The defendant contends that Allen was foreshadowed by prior decisions, and therefore should be applied retroactively. We disagree. It is true that we stated in Allen, supra 395 Mass. at 456, 480 N.E.2d 630, that "[w]hile we have never squarely decided the issue, our decisions suggest that a judicial determination of voluntariness is necessary whenever questions concerning the voluntariness of a defendant's statements are raised, even when the statements are made to private citizens." However, we do not think those decisions clearly foreshadowed the rule announced in Allen. Prior to Allen, the voluntariness of statements made to private parties was only implicated where there was evidence of coercion. See, e.g., Commonwealth v. Vazquez, 387 Mass. 96, 100-102, 438 N.E.2d 856 (1982); Commonwealth v. Mahnke, 368 Mass. 662, 680-681, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). On several occasions prior to Allen, we expressly left open the question whether uncoerced statements made to private persons required a voir dire, indicating that the reasoning applied to coerced statements did not necessarily extend to uncoerced statements. See Commonwealth v. Paszko, 391 Mass. 164, 177, 461 N.E.2d 222 (1984) (decided after the trial in this case); Commonwealth v. Vazquez, supra 387 Mass. at 101 n. 9, 438 N.E.2d 856; Commonwealth v. Brady, supra 380 Mass. at 50 n. 2, 410 N.E.2d 695. Therefore, we conclude that Allen announced a new rule, not clearly foreshadowed by prior decisions.

Having determined that Allen announced a new rule, we turn to the second part of the test to decide whether Allen is to be applied retroactively. This inquiry requires consideration...