CPCS Criminal Defense Training Unit Case Summaries
Week of February 7, 2011
Keren Goldenberg wrote these summaries
Commonwealth v. Kevin Robinson , 09-P-1072 (Feb. 11, 2011)
http://www.sociallaw.com/slip.htm?cid=20464&sid=119
Kevin Robinson was convicted 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. The convictions stem from a fire that destroyed an apartment building, in the process killing two of the building's occupants. A cause and origin expert opined that the fire was intentionally set, and gasoline residue was found on the floor where the fire started. The defendant was nearby the building when the fire broke out. The evidence presented at trial was that he told firefighters precisely where it had started and that he gave police inconsistent statements regarding where he was before and during the fire. The statements were not recorded.
On appeal, the defendant argued that the Judge Gernshengorn erred in refusing to conduct individual voir dire on racial bias towards African Americans. The court held that it was not error to refuse this request since arson committed by a black man that ultimately killed two Haitian people did not suggest that race was an important consideration in this case. Individual voir dire regarding racial bias is only required, upon request, in cases of interracial murder, interracial rape, and sexual offenses against children committed by defendants of a different race. Commonwealth v. Lopes, 440 Mass. 731, 737 (2004).
Practice Tip: It is unclear how this issue was preserved and/or how the racial bias was documented. A judge must conduct individual voir dire if there is a substantial risk that extraneous issues might influence the jurors. See G. L. c. 234, § 28; Commonwealth v. Ashman, 430 Mass. 736, 739 (2000).It is the responsibility of defense counsel to properly preserve any extraneous issue by motion, memorandum and affidavits/attachments/studies [see for example the Massachusetts Supreme Judicial Court Commission to Study Racial and Ethnic Bias in the Court: Final Report], etc. You can find examples of these in the MCLE Trying Cases series [Drug Cases; Homicide Cases & Sex Offense Cases].
Continue to request individual voir dire any time you have a client who is a racial minority or any other group that regularly experiences prejudice (gay, transgender, etc.) While only certain interracial crimes require individual voir dire by statute (interracial murder, interracial rape, and sexual offenses against children committed by defendants of a different race), the race of the alleged defendant is not the only factor that prompts bias. It could be local publicity or attitudes of the community about particular issues. It may be helpful to get affidavits by lawyers in your county of relevant experiences in jury selection. CPCS has a number of these. Reach out to your local group of bar advocates to further document the well known phenomenon that jurors are reluctant to volunteer personal information in a group setting. Remember if your request is denied you must object and revisit the issue if something happens during the trial.
The defendant argued that the judge gave an improper instruction regarding the principles set out in Commonwealth v. DiGiambatista, 442 Mass. 423, 447-448 (2004). In DiGiambatista, the SJC held that when a defendant gives an unrecorded statement while at a police station, the defendant is entitled, on request, to a jury instruction explaining that "the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt." The trial judge omitted the advisement that the absence of a recording permits them to conclude that the Commonwealth has failed to prove voluntariness.
The court did not find error because they found that voluntariness was not a live issue noting that although the humane practice rule was given, defense counsel did not request it. Furthermore, the opinion suggests that there was only a challenge to the voluntariness of the waiver and not to the voluntariness of the statement, thus eliminating the requirement of the most important part of the DiGiambatista instruction.
Practice Tip: If you have a case where the defendant gave a statement at a police station that was not recorded, make sure you raise the issue of voluntariness of the statement (and not just voluntariness of the Miranda waiver) at trial. You must raise the voluntariness of the statement and request the humane practice instruction to get the best part of the DiGiambatista instruction.
Mr. Robinson's second objection to the DiGiambatista instruction concerned the judge's statement that "[y]ou may consider whether or not the defendant indicated that he wished to . . . not be recorded." The court found no error noting that the judge immediately followed that phrase with the unconditional statement that "in any event, if an interrogation takes place in a police station and that statement has not been recorded, our highest court has suggested that because of the absence of any recording, you should weigh the evidence of the defendant's alleged statement with great caution and care." The court noted that in Commonwealth v. Drummond, it was held that "[p]articular reasons why an interrogation was not recorded are for the jury to weigh when they consider, after hearing the instruction, evidence of what the Commonwealth contends the defendant said to police." 76 Mass. App. Ct. 625, 627-628 (2010).
Practice Tip: Massachusetts's wiretap law only requires that the parties are aware that they are being recorded. They do not need to give permission for the recording. It is in the police's interest for the suspect to decline to be recorded since they can then testify to the details of an alleged confession without any contradictory evidence. That is why the police present the suspect with the option rather than just informing him of the recording and proceeding to do so. Consider proposing a modified DiGiambatista instruction that explains that the police only need to notify a defendant of the fact that he is being recorded, and that the police were not required or encouraged to give him the option to decline recording given the SJC's preference for recorded statements. Take a look at Drummond on this issue.
