February 11, 2011
Commonwealth v. Kevin Robinson
78 Mass. App. Ct. 714 (2011)
Appeals Court of Massachusetts
Homicide, Arrest, Criminal, Motion to Suppress, Waiver, Constitutional Rights, Jury.
The defendant was found guilty of two counts of murder in the second degree, one count of arson of a dwelling, and one count of causing injury to a firefighter. These stem from a fire that destroyed an apartment building in Cambridge, which killed two of the building’s inhabitants. On appeal the defendant claimed that many aspects of the trial, including the trial judge’s instructions, were erroneous. The conviction was affirmed.
Facts
On August 6, 2005, there was a fire on the second floor of an apartment building. The fire was extinguished but not before there was damage to the building and two people, Regina and Benita Antoine, died. The fire was intentionally set and the defendant gave conflicting stories to the police (and also told the firefighters exactly where the fire was set). Not only was gasoline residue found on the defendant’s clothes, but it was also found that the defendant was having a fight with the landlord. His girlfriend had provided him with a lighter when asked. After denial of his motion to suppress statements made to the police, the defendant was convicted. On appeal he argued that the statements to the police should have been suppressed, that there should have been an individual voir dire, and that the trial judge gave an improper DiGiambattista instruction.
Issue 1: Should the statements made to the police have been suppressed?
Following the fire there were three separate interviews of the defendant. Only at the third was he detained at a Cambridge police station. When the interview started, the officers read the defendant his Miranda rights and also his “right” to have the interview recorded. The defendant signed a Miranda waiver but declined the recording. The interview lasted for more than four hours and during that time the defendant complained of an upset stomach. Even though he was offered medical assistance, he declined; he also declined many opportunities to take a break. Unbeknownst to the defendant, the officers had obtained a warrant for his arrest before the interview, and when the defendant asked if he could leave, they said that he could not and arrested him. Because of this the defendant stated that his Miranda waiver was invalid because he was not informed prior to questioning that they had the warrant. The trial judge found that the defendant had made the statements both freely and voluntarily, and that he had waived his Miranda rights. Furthermore, there is no requirement for police officers to tell a defendant when he is charged with a crime before a Miranda waiver is obtained. Commonwealth v. Amazeen, 375 Mass. 73 (1978).
Issue 2: Should there have been an individual voir dire?
If there is a high risk of extraneous issues influencing jurors, a judge must conduct an individual voir dire. G.L. c. 234, § 28. On request, it can also be used in cases involving interracial murder, interracial rape, and sexual offenses against children committed by a defendant of a different race. These were not present in this case. If the defendant showed some other basis for finding a risk of extraneous influences, then the judge can enjoy broad discretion in determining “whether [such] foundation has been established.” Commonwealth v. Boyer, 400 Mass. 52, 55 (1987). Here, the judge did not abuse her discretion by refusing the defendant’s request.
Issue 3: Was the judge’s murder instruction improper?
The trial judge instructed the jury that they could find the defendant guilty of murder in the second degree if the Commonwealth proved that the defendant committed an unlawful killing either with malice aforethought or in the commission of an inherently dangerous felony punishable by a maximum sentence of less than life imprisonment. The defendant stated that the judge’s malice instruction was improper because there was evidence only to support only the third prong of malice and the judge instructed all three prongs. However, this is moot because the jury had sufficient evidence to make their determination.
Issue 4: Was the DiGiambattista instruction improper?
The defendant said that this instruction was improper because there should have been at least an audiotape of the complete interrogation and that in the absence of any such recording, that the jury should weigh evidence of the defendant’s alleged statement with “great caution and care.” Commonwealth v. DiGiambattista, 442 Mass. At 448. However, the defendant both denied to have the interrogation recorded and did not object during trial. The trial judge also made it clear that the jurors should use caution when determining the defendant’s possible guilt. There was no error here.
Judgments affirmed.
–Prepared by JWK.
