Com v. Womack, 7/13/10

Commonwealth v. Leo Womack, July 13, 2010
457 Mass. 268
 
Accusations and Denials, Juror Intimidation, Right to Remain Silent

The defendant was convicted of felony-murder in the first degree.  His appeal for a new trial was denied by the trial judge.  The appeal of that denial as well as his direct appeal were consolidated into this appeal.  The defendant contends that the judge erroneously admitted evidence of accusations by police during a custodial interrogation and evidence of the defendant's blanket denials and his silence, and that the judge should have declared a mistrial based on evidence of alleged juror intimidation.  The SJC affirmed the conviction and the order denying a new trial and also declined to reduce the degree of guilt.

Facts

The defendant robbed a convenience store clerk with a knife around 4am on February 12, 2004.  He took around 400 dollars, fatally stabbed the clerk, and then fled the scene.  During the robbery the defendant wore a baseball cap and towel on his head and wore a heavy coat zipped up.  The defendant was identified because of security camera footage which showed him entering the store twice around 3am and 3:15am.  The first time he wore no hat and his coat was unzipped, and the next time he wore a hat and zipped coat while looking at the security camera monitors.  His height, weight, and gait, as well as his sneakers matched the assailant in the video.  Police recognized the defendant from the tape and arrested him.  The defendant waived his Miranda rights and agreed to speak with police.  During this interview the officers made several direct and indirect accusations of the defendant that he either denied or did not answer.  The defendant was held as a pretrial detainee and while in custody told his cell-mate that he had robbed the store.  This cell-mate testified at trial, and admitted that he expected to receive consideration for the testimony in his upcoming case.  The defendant offered an alibi defense claiming that he had gone out earlier but had returned home before the robbery occurred.  His wife testified to those facts.

Accusations and Denials

At trial, one of the officers who interviewed the defendant testified that he told the defendant he was under arrest because, “He was identified by Lynn police officers as being in the 7-Eleven store on Western Avenue just prior to a victim's being stabbed there, and that he fit the same height, weight and same gait, and some of the clothing that was observed was consistent."  The defense objected to this statement as being an accusation, which was sustained.  There was no motion to strike that testimony.  The prosecutor rephrased the question and the officer basically gave the same answer, to which there was no objection.  The officer went on to testify that he told the defendant, “Here you are coming in, buying your drink, and looking around.”  The defense objected to this statement but was overruled, and the officer continued, “"Here you are coming in, seeing what you might look like with a hat on and your coat zipped up. And you're checking yourself out in the monitor. You didn't like what you saw, so you went in and then you went out and got a towel to cover your face. You came back, you robbed the place, and you stabbed the clerk”, to which the defendant responded, "I saw the news. I saw the papers. I saw the reward. I didn't do anything. I bought a juice."”

Extrajudicial accusatory statements made in the presence of a defendant, which he has unequivocally denied, are hearsay and inadmissible as evidence of guilt in the Commonwealth's case-in-chief.  The SJC stated that this rule applies even to exchanges made in the context of a larger statement, and that the whole exchange need not be accusatory for accusations and denials made within the exchange to be considered inadmissible.  The SJC disagreed with the defendant’s contention that both objections were preserved and entitled to the prejudicial error standard.  The first objection was sustained, but because there was no motion to strike the testimony and because there was no objection to the rephrased question and identical response, that objection was not preserved and was only entitled to the substantial likelihood of miscarriage of justice standard.  The second objection, which was overruled, was preserved.

The defendant also argued that his denials in response to the accusations should not have been admitted and were subject to the harmless beyond a reasonable doubt standard like commenting on the defendant’s right to remain silent.  The court not only disagreed with this contention but went on to say, “To the extent that Commonwealth v. Diaz, supra, relied on Nawn and applied the harmless beyond a reasonable doubt standard to a defendant's denial of an accusation (as opposed to an exercise of his right to remain silent), after he waived his Miranda rights, it is overruled. Instead, we apply the prejudicial error standard long applied both to accusations and denials.”

The court then decided that there was no substantial likelihood of a miscarriage of justice, or prejudice, respectively, from the admission in evidence of these accusations because they were cumulative of other evidence and because the officers were cross examined, and because the videotape and photographs were available as exhibits.  The court further concluded that admission of the defendant’s denials did not prejudice the defendant, stating that prejudice would have been more likely caused by admission of the accusations than denials.

Defendant’s Silence

The defendant argued that his right to remain silent was violated three times by the officers during the interview.  The first time was when he told the officer he was in the store only once, to which the officer replied, “Do you really want me to write that down?”, to which the defendant replied, “Go ahead I’m not signing anything anyway.”  The next was when he said nothing in response to the officer’s question about why he waited in the doorway of the store a few seconds before entering.  The final silence was the defendant’s failure to tell the police that he had been at another gas station ten minutes away shortly before the robbery.  The defendant argued that his statement about not signing anything was an act asserting his right against self-incrimination under the Fifth Amendment, and that the testimony about him not responding to a question or failing to inform police about his whereabouts should not have been admitted because it was commentary on his right to remain silent.

The SJC reviewed every instance, because they were not objected to at trial, for a substantial likelihood of a miscarriage of justice.  They found the first instance was merely a refusal to sign a writing, the second instance was a refusal to answer a particular question (because the defendant had already waived his right to remain silent, thus this refusal could be commented on), and the third instance was allowable because there was evidence which showed the reason he did not tell the police about going to another store was to try and set up a false alibi.  The SJC also noted that they had previously held that even a thirty minute silence in the middle of an interrogation is not an exercise of the defendant’s right to remain silent, and that the USSC recently held that the invocation of the right to remain silent after a waiver of Miranda rights must be clear and unequivocal. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2260-2263 2010 (where three hour period of silence during custodial interrogation does not effectuate an exercise of the right to remain silent)

Juror Intimidation

During the trial it came to light that some spectators of the trial had made some comments to the jurors that might have been inappropriate or intimidating.  The judge brought in the jury and asked if this had happened to any of them, and then proceeded to conduct an individual voir dire of each juror with the attorneys.  Though some reported being made nervous from the crowds outside or that they felt they were being stared at, all stated that they could still make a rational decision in the case.  The judge found that all the jurors were still able to be objective and did not dismiss any of the jurors, the defense counsel did not object to any part of the voir dire process and expressed satisfaction with each individual voir dire and did not move for a mistrial.

On appeal the defendant contended a mistrial should have been declared.  The SJC noted that a judge has discretion in this area, including whether or not to declare a mistrial, and upon their review they found that there was no abuse of discretion in the retention of the jurors.

Conclusion-

The SJC affirmed the conviction and the order denying a new trial and also declined to reduce the degree of guilt.


-Prepared by AEK