Commonwealth v. Luis Drummond, April 22, 2010
76 Mass. App. Ct. 625
Practice, Criminal, Admissions and confessions, Voluntariness of confession, Instructions to jury, Argument by prosecutor. Constitutional Law, Admissions and confessions, Waiver of constitutional rights.
The defendant was convicted of armed robbery while masked, based in part on a confession he made to a detective when the two were alone in a police interrogation room. Because the interrogation had not been recorded, the defendant requested and received a jury instruction pursuant to Commonwealth v. DiGiambattista. The trial judge blunted the impact of the instruction by telling jurors they could disregard it if they found that the defendant declined to have the interrogation recorded after being advised of his right to have that done. The judge also omitted the second half of the instruction, which allows but does not compel jurors to find that a confession was involuntary if it was not recorded. The appeals court held that because of the abundance and strength of the Commonwealth’s other evidence, the error in the jury instructions did not create a substantial risk of a miscarriage of justice. Judgment affirmed.
The police provided the defendant with Miranda warnings in English and written warnings in Portuguese, his native language. Defendant signed the written form. In the interrogation room, the detective repeated the Miranda warnings and the defendant waived his right to audio record the interview, signing a waiver in English to this effect. The defendant then confessed to his participation in an armed robbery and led officers on a tour of the robbery spot, the escape route, and the house where he dropped off his companions after the robbery. Directions were given in English and the defendant displayed no difficulties with the language.
Defendant argued that the judge’s qualification of the DiGiambattista instruction was error. He also argued the instruction was incomplete, because the judge failed to tell the jury that they could use the absence of a recording to “conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt,” as required when voluntariness is at issue. Defendant also claims that prosecutor’s closing argument made improper reference to his right to remain silent by stating that the voluntariness of his confession was uncontradicted.
The DiGiambattista court held that the defendant is entitled to a jury instruction advising that any alleged statement by a defendant in the absence of any recording should be weighed with great caution and care. The judge’s limiting language here ignored the clear directive of the DiGiambattista court and stripped the jury instructions of its force. Accordingly, the appeals court held that the instruction was incorrect.
The trial court also failed to give the second part of the DiGiambattista instructions, relating to the voluntariness of the confession in the absence of an interrogation recording. The defendant argued that his inability to understand English rendered his confession involuntary. The Commonwealth’s argument that the defendant waived the issue because he never requested this aspect of the instructed lacked validity. Defendant’s request for the DiGiambattista instructions should have automatically triggered the second half of the instructions regarding voluntariness.
An erroneous jury instruction poses a substantial risk of a miscarriage of justice if it “materially influenced” the jury’s verdict. Commonwealth v. Alphas, 430 Mass. at 13. The Commonwealth’s other evidence was formidable and the voluntariness of the defendant’s inculpatory statements and actions could be determined based on the totality of the circumstances. Given the considerable evidence before the jury as to the defendant’s guilt, the appeals court found no basis for concluding that the jury’s decision “might have been otherwise but for the error.” Id.
The defendant argued that the prosecutor’s closing argument maintained that there was no evidence that the confession was involuntary was an impermissible comment on the defendant’s failure to testify. The appeals court found that the challenged remarks were directed more at the general weakness of the defendant’s defense than toward the defendant’s own failure to testify, and was therefore permissible.
