Commonwealth v. Gaulden
Commonwealth v. Gaulden
Opinion of the Court
In October, 1979, a Hampden County jury found the defendant guilty of murder in the second degree. In her appeal, which we transferred here on our own motion, the defendant has raised various challenges to her conviction. We deal with those challenges first in this opinion and conclude that the challenges are without merit. On September 9, 1980, following the jury verdict, the judge reduced the verdict from murder in the second degree to a finding of guilty of manslaughter. He purported to act under G. L. c. 278, § 11, as appearing in St. 1979, c. 344, § 43A, and Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). The judge agreed that the jury verdict was warranted by the evidence but concluded that “a finding of guilty of the lesser included offense of manslaughter [was] warranted by the weight of the evidence and would have been more consonant with the interest of justice.” The Commonwealth filed a petition in the county court seeking relief under the general superintendency power of this court
In the course of the opinion we set forth various aspects of the evidence introduced at trial. At this point, it is sufficient to say that, on April 13, 1979, following an argument, the defendant stabbed the victim several times with a kitchen knife in the bedroom of an apartment they shared in Springfield. No one else was present. The defendant called the police. The victim was taken to a hospital where attempts to save his life were unsuccessful. The defendant made statements to the police, and she testified at trial. We turn first to the defendant’s challenges to her conviction because, of course, if there must be a new trial, the contest over the reduction of the conviction becomes unimportant.
1. Shortly after the victim’s death, the defendant made oral statements at the police station and signed a written statement, which the defendant has characterized as a confession. Miranda warnings had been given to the defendant at the apartment where the victim was stabbed. No Miranda warnings were repeated at the police station before the initial questioning of the defendant, not more than an hour after the warnings were given. Further Miranda warnings were given before the defendant participated in the preparation of her written statement.
The defendant argues that her confession should have been suppressed because she did not understand the Miranda warnings or give a voluntary or intelligent waiver of her rights.
The question before the judge was a straightforward one. Because the judge has retired, we cannot readily remand the case for him to make findings at this time. See Commonwealth v. Forrester, 365 Mass. 37, 45 (1974). We are in as good a position to deal with this matter as would be some other judge if we were to remand the case. A failure to make explicit findings is not in and of itself reversible error. See Commonwealth v. Brady, 380 Mass. 44, 52 (1980), and cases cited. Therefore, we have analyzed the record to see if the findings implicit in the judge’s ruling are supported. See Commonwealth v. Williams, 378 Mass. 217, 224 n.4 (1979).
The judge was warranted on the evidence in concluding that the Commonwealth had met its heavy burden of proving that the defendant made a knowing, intelligent, and voluntary waiver of her Miranda rights. See Commonwealth v. Garcia, 379 Mass. 422, 429 (1980). There was no evidence of coercion, duress, or improper suggestion. The defendant and the interrogating officer had known each other for eight years. The officer testified that the defendant had been drinking and that she was upset. He did not think that she was drunk. She was able to dress herself at the apartment before going to the police station, and she moved under her own power. The defendant testified on direct examination at the voir dire that the police officer told her at the apartment, after she got dressed, that she had the right to remain silent. She believed that the police officer told her that anything she said could be used against her. She recalled that he told her that she had the right to talk to a lawyer before she was asked any questions and to
2. The defendant challenges the admission of certain photographs taken in the course of an autopsy of the victim. She argues that the judge abused his discretion in admitting them. We conclude that the judge did not. Photographs of the victim’s body were relevant to show the nature of the knife wounds inflicted by the defendant. See Commonwealth v. Stewart, 375 Mass. 380, 385 (1978). The medical examiner who conducted the autopsy carefully distinguished between those knife wounds and surgical wounds sustained when the victim was treated at a hospital before he died. The judge instructed the jury to make a distinction between the two types of wounds. The photographs were black and white and, although certainly not attractive, they were not inflammatory. Photographs showing the victim’s larynx and trachea, severed from the body, were relevant in demonstrating the force of a blow to the victim’s throat. Because the photographs were relevant and not inflammatory, we conclude that the judge acted within his discretion according to the standards concerning autopsy photographs set forth in our recent opinion in Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980).
The judge regarded the witness as an expert who could be of some assistance to the jury in understanding the way in which the lock operated. The record does not show that the defendant insisted on a voir dire questioning as to the witness’s qualifications. The point is obscured in an unrecorded bench conference, after which the defendant expressed no objection. We accord broad discretion to the trial judge with respect to the admission of expert testimony. See Commonwealth v. Devlin, 365 Mass. 149, 152 (1974); Commonwealth v. Bellino, 320 Mass. 635, 638, cert, denied, 330 U.S. 832 (1947). The judge did not abuse his discretion.
4. The judge correctly denied the defendant’s motion for a finding that she was not guilty of murder. Because the jury returned a verdict of guilty of murder in the second degree, we need not consider whether the evidence warranted a verdict of guilty of murder in the first degree. We consider only whether the evidence warranted the verdict returned by the jury and conclude that it did. The evidence presented as of the conclusion of the Commonwealth’s case in chief (and as of the close of the evidence) warranted findings that there was an argument between the victim and the defendant; that the victim threatened to harm the defendant; and that the defendant left the bedroom where the victim was sitting, weht to the kitchen of the apartment,
The Commonwealth’s “Appeal”
An initial question presented by the Commonwealth’s challenge to the judge’s order reducing the conviction from murder in the second degree to manslaughter is whether the Commonwealth is entitled to seek relief under the general superintendency power of this court. We have not decided to what extent, if at all, the Commonwealth is entitled to seek relief under G. L. c. 211, § 3, from action that it is claimed exceeded the power of a trial judge and whether the Commonwealth may assert substantive rights under G. L. c. 211, § 3. See Commonwealth v. Cook, 380 Mass. 314, 319-320 (1980); Commonwealth v. McCarthy, 375 Mass. 409, 414 (1978). We suggested in the McCarthy opinion that “ [pjerhaps the Commonwealth would be entitled to relief under [G. L. c. 211, § 3] in a case which . . . showed that the judge acted arbitrarily, frivolously, with abuse of discretion, or contrary to law, in granting a new trial after a guilty verdict.” Commonwealth v. McCarthy, supra at 415 n.6.
We have denied relief under G. L. c. 211, § 3, where an alternative and adequate means of obtaining relief is available. Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980). We have held today that the Commonwealth has the right to appeal directly from the allowance of a motion under Mass. R. Crim. P. 25 (b) (1). Commonwealth v. Therrien, ante 529, 536 (1981). We see no distinction between the Commonwealth’s right to appeal a motion under rule 25 (b) (1) and a motion under rule 25 (b) (2). The Commonwealth’s right to appeal a rule 25 (b) motion was not clear prior to today. If there were no such right of appeal, the single justice suggested that an action in the nature of a writ of prohibition, charging that the judge exceeded his ju
We turn, therefore, to a discussion of the authority of a judge under Mass. R. Crim. P. 25 (b) (2), and G. L. c. 278, § 11, to order the entry of a finding of guilty of manslaughter in lieu of the jury’s verdict of guilty of murder in the second degree where the evidence warranted the murder conviction. Prior to the effective date of the Massachusetts Rules of Criminal Procedure and the 1979 amendment of G. L. c. 278, § 11, it was clear that a trial judge did not have the power to reduce a verdict to a conviction of a lesser offense.
On the face of the specific provisions of Mass. R. Crim. P. 25 (b) (2), and G. L. c. 278, § 11, the judge had authority, on motion of the defendant, to order the entry of a verdict of guilty of manslaughter. Rule 25 (b) (2) provides that “ [iff a verdict of guilty is returned, the judge may on motion . . . order the entry of a finding of guilty of any offense included in the offense charged in the indictment.” Section 11 of G. L. c. 278 provides that if a guilty verdict is returned, “the judge may on a renewed motion for a directed
The Commonwealth argues that the judge has the authority, on a defendant’s motion, to order the entry of a finding of guilty of a lesser included offense only when the evidence was not sufficient to support the verdict returned by the jury. Clearly, as rule 25 (a) states, a judge should enter a finding of not guilty on a motion for such a finding made during trial “if the evidence is insufficient as a matter of law to sustain a conviction on the charge.” Similar language does not appear in that portion of rule 25 (see rule 25 [b] [2]) concerning postverdict action by the judge, but the Commonwealth points to the heading of rule 25 — Motion for Required Finding of Not Guilty — and argues that “required finding” means a finding required by law. The argument is that the judge may order a new trial based on the judge’s assessment that justice may not have been done, but he may not properly weigh the evidence and conclude that a guilty finding of a lesser offense is more appropriate, even if the defendant moves for such a result.
In construing the meaning of rule 25 (b) (2), we appropriately may look to the reporters’ notes for guidance concern
The reporters clearly state that rule 25 (b) (2) gives trial judges a power to enter a finding of a lesser degree of guilt in the same manner that this court has had such a power under G. L. c. 278, § 33E, on the appeal of a capital case. As part of the statutory revisions that were made in order to conform the statutes of the Commonwealth to the proposed rules of criminal procedure, § 33E was amended to limit the § 33E function of this court to appeals from convictions of murder in the first degree, eliminating the previous provision calling for such review in an appeal from a conviction of murder in the second degree on an indictment for murder in the first degree. St. 1979, c. 346, § 2. The new power of trial judges to enter a finding of guilty of any lesser included offense was extended to all cases. Our § 33E power has not been limited to cases in which the evidence did not
The prosecution grants that rule 25 (b) (2) augments the powers of trial judges with respect to the reduction of verdicts. It argues, however, that the reporters’ notes show an intention to permit such a reduction under rule 25 (b) (2) only, as the reporters’ notes state, “where the evidence will not support the charge” (emphasis supplied). We think that the entire discussion of rule 25 (b) (2) indicates that the word “not” was inadvertently included in the reporters’ notes.
In deciding whether to reduce a jury verdict to a finding of guilty of a lesser offense, a trial judge, acting under rule 25 (b) (2), should be guided by the same considerations that have guided this court in the exercise of its powers and duties under § 33E to reduce a verdict. This court has used that power sparingly.* *
The judge concluded, on a review of the evidence, that, although “a verdict of murder in the second degree was warranted by the evidence, a verdict of manslaughter would have comported more closely with the weight of the evidence.” He recognized that, although the defendant, who lived with the victim as husband and wife, had left the bedroom to procure a knife, there was fear of sudden attack or of immediate aggression. The victim, who was six feet five inches tall and weighed about 265 pounds, had severely beaten the defendant many times before. The defendant was five feet eleven inches tall and weighed 138 pounds. The judge concluded that the weight of the evidence tended to establish that the killing was not carried out with malice aforethought. He concluded that a manslaughter verdict “would have been more consonant with the interest of justice.”
From our reading of the transcript, we conclude that the judge acted within his discretion in reaching his decision. The defendant was asleep when the victim came home. He woke her up and started shaking her. The victim had a reputation for violence. There was an argument. The victim called the defendant a “whore” and threatened her. She pushed him into a chair and went for the knife. This sudden response to the victim’s aggression suggests a response
Conclusion
We answer the reported question in the affirmative. Judgment shall be entered in the county court vacating the stay of the trial judge’s order of September 9, 1980, and affirming that order, which set aside the verdict of guilty of murder in the second degree and entered a finding of guilty of manslaughter. On the defendant’s appeal, the conviction of manslaughter is affirmed.
So ordered.
The reported question is as follows:
“In the circumstances of the present case, does a trial judge of the Superior Court Department have the authority under G. L. c. 278, § 11, as amended in 1979, and Mass. R. Crim. P. 25, to reduce a conviction warranted by the evidence, following a verdict of guilty of murder in the second degree, to a conviction of manslaughter, even if the weight of the evidence (in the opinion of the trial judge) should have led to conviction of the lesser included offense?”
The defendant argues further that the written statement should have been suppressed because, by the time further Miranda warnings were given, the cat was out of the bag, that is, there was no point in holding back after her oral admissions. See Commonwealth v. Haas, 373 Mass. 545, 554 (1977); Commonwealth v. Mahnke, 368 Mass. 662, 686 (1975), cert. denied, 425 U.S. 959 (1976). This argument relies on the validity of the contention that the defendant did not make a voluntary and intelligent waiver of her Miranda rights before she made any oral statements to the police.
The defendant further contends that her statutory rights to make a telephone call were violated. See G. L. c. 276, § 33A. The record shows that a telephone call was made to the defendant’s sister and that her sister came to the station. The defendant has not shown that there was a statutory violation.
The defendant has not made a showing that she was prejudiced by the failure of the clerk to cover up the back of certain photographs, shown to
It is clear from transitional rule 1A of the Massachusetts Rules of Criminal Procedure, 378 Mass. 843 (1979), that those rules are applicable to this matter where the judge acted after July 1, 1979, even though the incident involved here occurred in April, 1979. Section 11, in the form with which we are concerned, was amended to be effective on July 1, 1979. St. 1979, c. 344, § 51.
If the Commonwealth also agreed to the entry of a finding of guilty of a lesser offense, that result could be achieved, even under the Commonwealth’s argument. In such a case, the action would be equivalent to granting a new trial and accepting a bargained guilty plea to the lesser included offense.
This linking of the motion for a finding of not guilty and the judge’s posttrial options is found more easily in § 11 which speaks of a renewed motion for a directed verdict than it is found in rule 25 (b) (2). Although rule 25 (b) (2) mentions a renewed motion in its first sentence, its last sentence refers to a new and different motion — a motion to set aside the verdict.
“Subdivision (b) (2). By giving the court the power to enter a finding of guilty of any lesser included offense or, in the language of G. L. c. 278, § 33E, a lesser degree of guilt, after a verdict of guilty, this rule deviates sharply from prior criminal practice under G. L. c. 278, § 11. Commonwealth v. Jones, 366 Mass. 805 (1975). This has the practical effect of extending to the trial courts, postverdict, a power in all cases much like that which had previously been reserved to the Supreme Judicial Court in capital cases under G. L. c. 278, § 33E (as amended). This increases the options available to the trial judge after verdict. It is anticipated that through this extension greater judicial economy will result where the evidence will not support the charge, but where the weight of the evidence clearly requires the conviction of a lesser included offense. See Jones, supra” (emphasis supplied). Reporters’ Notes to Mass. R. Crim. P. 25 (b) (2), Mass. Ann. Laws, Rules of Criminal Procedure at 435 (1979).
Another reasonable alternative is to read the sentence last quoted in n.7 above as a partial rather than an all inclusive statement of the powers of the judge under rule 25 (b) (2). The point of that sentence may have been to highlight that portion of the new provision that extended to the judge the option to reduce a verdict, on motion, where the evidence did not support the verdict. If in such circumstances a judge reduces the conviction to one of a lesser offense, it will eliminate the otherwise
We have surveyed the opinions of this court since the 1962 amendment of G. L. c. 278, § 33E (St. 1962, c. 453), that gave this court for the first time the duty to consider the degree of guilt where there had been a conviction of murder in the first or second degree. See Commonwealth v. Baker, 346 Mass. 107,109 (1963). We have identified approximately 230 opinions of this court through Commonwealth v. Chasson, ante 183 (1981), in which this court explicitly or by necessary implication considered whether to order the entry of a finding of a lesser degree of guilt in such a case. We have identified only the following thirteen opinions in which this court has ordered a reduction in the verdict:
Commonwealth v. Citation
Jury Action on Verdict Appeal
1. Baker,
2. White,
3. Ransom,
4. Rego,
5. Kinney,
6. Williams,
7. Jones,
8. Vanderpool,
9. Mahnke,
10. Pisa,
11. Seit,
12. Cadwell,
13. King,
346 Mass. 107 (1963) 1st Degree
353 Mass. 409 (1967) 1st Degree
358 Mass. 580 (1971) 2d Degree
360 Mass. 385 (1971) 1st Degree
361 Mass. 709 (1972) 2d Degree 364 Mass. 145 (1973) 1st Degree
366 Mass. 805 (1975) 2d Degree
367 Mass. 743 (1975) 1st Degree
368 Mass. 662 (1975) 2d Degree
372 Mass. 590 (1977) 1st Degree
373 Mass. 83 (1977) 2d Degree
374 Mass. 308 (1978) 1st Degree
374 Mass. 501 (1978) 1st Degree
Manslaughter
2d Degree
Manslaughter
2d Degree
Manslaughter
2d Degree
Manslaughter
2d Degree
Manslaughter
2d Degree
Manslaughter
2d Degree
2d Degree
If, of course, a judge declined to reduce a verdict to the level sought by a defendant and the case were one in which this court had the duty to consider the appeal under § 33E, we would engage in an independent analysis of the question whether a lesser verdict of guilt should be entered.
Because we accept the manslaughter verdict, we need not consider under G. L. c. 278, § 33E, whether we should direct the entry of a lesser verdict of guilt. We could do so as to this second degree conviction because the crime occurred prior to the amendment that limited our § 33E function to first degree convictions. See Commonwealth v. Davis, 380 Mass. 1, 16 (1980).
Concurring Opinion
(concurring). In so far as the majority hold that the Commonwealth has a right to appeal from the allowance of a motion under Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), I dissent from the majority’s opinion for the same reasons I dissented in Commonwealth v. Therrien, supra. In all other respects, including the disposition of this case, I join with the majority.
Reference
- Full Case Name
- Commonwealth vs. Minnie Mae Gaulden (And a Companion Case of the Same Name)
- Cited By
- 88 cases
- Status
- Published