Commonwealth v. Selby

686 N.E.2d 1316, 426 Mass. 168, 1997 Mass. LEXIS 399
CourtMassachusetts Supreme Judicial Court
DecidedNovember 21, 1997
StatusPublished
Cited by22 cases

This text of 686 N.E.2d 1316 (Commonwealth v. Selby) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Selby, 686 N.E.2d 1316, 426 Mass. 168, 1997 Mass. LEXIS 399 (Mass. 1997).

Opinion

Ireland, J.

A Superior Court jury convicted the defendant of murder in the first degree on two separate theories: deliberate premeditation and felony-murder. The killing took place during the commission of a separate felony punishable by life imprisonment — in this case, armed assault in a dwelling, G. L. c. 265, § 18A, of which the defendant also was convicted. The defendant received the mandatory term of life imprisonment without the possibility of parole on the first degree murder convic[169]*169tion and a concurrent sentence of from four to five years on a conviction of unlawfully possessing a firearm, third offense, G. L. c. 269, § 10 (a). (The judge placed the conviction of armed assault in a dwelling on file, with the defendant’s consent, without imposing sentence.)

The defendant appeals from the convictions, claiming that he was improperly denied his right to cross-examine a police officer concerning that officer’s knowledge or awareness of a certain dictum in Commonwealth v. Selby, 420 Mass. 656 (1995).1 He also claims that he should have received a jury instruction on involuntary manslaughter. Finally, he requests relief under G. L. c. 278, § 33E, owing in substantial part to the alleged misconduct of two police officers who, admittedly, used deceptive tactics to elicit incriminating statements from him while he was in police custody. We affirm the convictions.

The deceptive tactics of the two officers are described in Commonwealth v. Selby, supra at 658-659.2 On examining the “totality of the circumstances” surrounding the defendant’s statements, we concluded that they were given voluntarily and without coercion, despite the officers’ ruse. Id. at 664-665. At the same time, we expressed in dictum our disapproval of such police tactics. Id. at 665.

1. Limitation on cross-examination. During his cross-examination of one of the police officers, defense counsel attempted to elicit evidence of the officer’s knowledge of the dictum in Selby. Counsel asked whether the officer was “aware that the State Supreme Court has disapproved of [the officers’ technique of deception].” The officer responded, “I believe the State Supreme Court has approved this method, upheld this method five to zero most recently.”3 Defense counsel then remarked to the officer, “There was a decision that they [the Supreme Judicial Court] disap[170]*170proved of it . . . .” The judge interrupted and, at sidebar, instructed counsel to terminate further inquiry into the Selby opinion. Defense counsel lodged no objection to the judge’s ruling; nor did he produce an offer of proof explaining why testimony concerning a witness’s knowledge, understanding, or interpretation of a particular appellate opinion (or dictum therefrom) was relevant and admissible. Our standard of review, therefore, is limited to whether the uncontested restriction by the judge on cross-examination of the police officer posed a substantial likelihood of a miscarriage of justice. See, e.g., Commonwealth v. Young, 401 Mass. 390, 404 (1987). We conclude that it did not.

According to the defendant, the truncated inquiry into the Selby opinion left jurors with the false impression that the Supreme Judicial Court approves of police use of deceptive tactics while questioning suspects. Whatever we wrote in Selby (or how that was interpreted by a witness) was irrelevant to the core question posed to the jurors, namely, whether the defendant’s incriminating statements were voluntary beyond a reasonable doubt. See Commonwealth v. Grenier, 415 Mass. 680, 687 (1993) (jury could consider defendant’s statement only on finding beyond a reasonable doubt that it was made voluntarily); Commonwealth v. Tavares, 385 Mass. 140, 152, cert. denied, 457 U.S. 1137 (1982) (jurors must disregard defendant’s admissions unless Commonwealth proves beyond a reasonable doubt that they were voluntary). In assessing that question, the jurors were to consider all of the evidence “surrounding the interrogation and the individual characteristics and conduct of the defendant.” Selby, supra at 663, and cases cited. See also Commonwealth v. Edwards, 420 Mass. 666, 673-674 (1995). That, of course, included detailed evidence produced by the defendant concerning the officers’ use of trickery to help induce the defendant’s statements. Cf. Commonwealth v. Meehan, 377 Mass. 552, 563 (1979), cert. dismissed, 445 U.S. 39 (1980) (judge should consider police misconduct, including misinformation given to a defendant by a police officer, in ruling whether confession is voluntary).

The entire question of the voluntariness of the defendant’s incriminating statements was submitted to the jury for their independent consideration, in keeping with our long-standing rule of “humane practice.” See Commonwealth v. Paszko, 391 Mass. 164, 179-180 (1984); Tavares, supra at 149-153; Com[171]*171monwealth v. Chung, 378 Mass. 451, 456 (1979) (humane practice applied to confessions but not to admissions); and Commonwealth v. Harris, 371 Mass. 462, 469-470 (1976) (humane practice applied to! confessions only). In Tavares, supra, we extended our humane practice to include “all incriminating statements made by the accused,” even statements, like those of this defendant, that fall short of a full confession. Id. at 150.

Under humane practice, the question whether the defendant’s incriminating statements or confessions are voluntary is first decided by the judge outside of the jury’s presence. Id. at 149. If the judge concludes that the statements were, in fact, voluntary, then the entire matter is submitted to the jury for their own determination. Id. at 150. We have stated a preference that jurors not be informed beforehand of the judge’s initial findings on the voluntariness issue. Harris v. Commonwealth, 371 Mass. 478, 481 n.3 (1976) (“better practice” is for judge not to inform jury of his conclusion). In essence, then, humane practice gives a defendant two opportunities — one before a judge and another before a jury — to demonstrate that his admissions or confessions were not voluntary. Humane practice, however, is not constitutionally required. See Paszko, supra at 181; Tavares, supra at 151-152; and Chung, supra at 456, all of which state that the judge’s initial ruling on voluntariness and, hence, admissibility of admissions or confessions is constitutionally required, but that independent jury consideration of voluntariness under humane practice is not.

The jury were given correct instructions on the voluntariness issue. Those instructions included detailed remarks reminding the jurors about the officers’ use of a ruse on the defendant. The jury were further instructed that they should consider that tactic in the over-all assessment — “the totality of the circumstances” — surrounding the defendant’s statements. Significantly, defense counsel neither requested a special instruction on the subject, nor moved to strike the testifying officer’s remark about the Selby case — a remark that he, himself, had elicited from the officer. Certainly, the judge was not required to strike the officer’s remark on his own initiative.

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Cite This Page — Counsel Stack

Bluebook (online)
686 N.E.2d 1316, 426 Mass. 168, 1997 Mass. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-selby-mass-1997.