Commonwealth v. Tavares (1982)

See Colorado v. Connelly, 479 U.S. 157, 168-69 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986); Commonwealth. v. Tavares, 385 Mass. 140 , 430 N.E.2d 1198, 1206 (1982). 3 .

Commonwealth v. Allen, 395 Mass. 448 , 480 N.E.2d 630, 636-37 (1985); Commonwealth v. Tavares, 385 Mass. 140 , 430 N.E.2d 1198, 1204-05 (1982), cert. denied sub nom, 457 U.S. 1137 , 102 S.Ct. 2967 , 73 L.Ed.2d 1356 (1982).

Commonwealth v. Tavares, 385 Mass. 140 , 430 N.E.2d 1198, 1206 (Mass.1982).

Commonwealth v. Tavares, 385 Mass. 140, 148 , 430 N.E.2d 1198, 1203-04 (1982); see also Commonwealth v. Ferry, 385 Mass. 639, 647 , 433 N.E.2d 446, 452 (1982) (quoting Commonwealth v. Tavares, 385 Mass, at 148, 340 N.E.2d at 1203-04); Commonwealth v. Garcia, 379 Mass. 422, 439-40 , 399 N.E.2d 460, 471 (1980) (quoting Commonwealth v. Roberts, 378 Mass. 116,123 , 389 N.E.2d 989 , 994 (1979)) (“showing of grave prejudice or substantial likelihood that a ‘miscarriage of justice …

See Commonwealth v. Tavares, 385 Mass. 140 , 155 n.24, cert. denied, 457 U.S. 1137 (1982) ("The questioning of jurors prior to the verdict is no different from a postverdict inquiry and is governed by the same principles, including judicial supervision"). [Note 12] If a report is made, the judge may ask what statements were made, and if statements denoting racial or ethnic bias were made.

Commonwealth v. Tavares, 385 Mass. 140,144-145 (1982).

The short answer is that the issue of voluntariness was raised and decided during the hearing on the suppression motion. 19 See Commonwealth v. Tavares, 385 Mass. 140, 151 (1982).

See Commonwealth v. Tavares , 385 Mass. 140 , 152, 430 N.E.2d 1198 (1982).

Id. at 145, 156 .

See Commonwealth v. Boateng, 438 Mass. 498, 503-504 (2003); Commonwealth v. Crawford, 429 Mass. 60, 65 (1999), quoting Commonwealth v. Tavares, supra at 151 (trial judge has “constitutional obligation to conduct a voir dire examination . . . where the voluntariness of a confession is in issue”).

“If the judge decides that [a defendant’s incriminating statements] are admissible, he should then ‘instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the statement[s] [were] voluntary and that the jurors must disregard the statements] unless the Commonwealth has met its burden.’ ” Commonwealth v. Vazquez, 387 Mass. 96 , 438 N.E.2d 856, 860 (1982), quoting Commonwealth v. Tavares, 385 Mass. 140 , 430 N.E.2d 1198, 1206 (1982).

See Commonwealth v. Keough, supra at 320 (defendant and victim had had no previous confrontation); and Commonwealth v. Jones, 366 Mass. 805, 808 (1975) (no evidence of prior trouble between defendant and victim). [3] Although, as the court implicitly acknowledges, there was substantial evidence that the defendant's conduct was explainable in no other way than that involuntary chemical intoxication caused the defendant to behave in an aberrational manner, I need not rely on t…

In our view, this aspect of the appeal is governed by the following discussion in Commonwealth v. Tavares, 385 Mass. at 140, 156 (1982), of a claim of racial prejudice infecting a jury’s deliberations: “The judge interrogated the jurors and concluded that they . . . [had] fairly and impartially rendered their] verdict.

Commonwealth v. Tavares, 385 Mass. 140, 144-145 (1982).

See Commonwealth v. Tyree, 387 Mass. 191, 213-214 (1982), cert. denied, 459 U.S. 1175 (1983); Commonwealth v. Tavares, 385 Mass. 140, 149 (1982); Commonwealth v. Scala, 380 Mass. 500, 510 (1980).

This fact is significant because a humane practice instruction is only required “where a defendant’s statements are offered in evidence and the voluntariness of those statements is ‘a live issue at trial.’” Commonwealth v. Carter, 475 Mass. 512, 523 (2016) (quoting Commonwealth v. Tavares, 385 Mass. 140, 150 (1982)).

Commonwealth v. Tavares, 385 Mass. 140, 151-52 (1982).

Commonwealth v. Mello, 420 Mass. 375 (1995). 1 When voluntariness is a “live” issue the Commonwealth has the burden of proving voluntariness by a standard of proof beyond a reasonable doubt and this must be demonstrated with “unmistakable clarity.” See Commonwealth v. Tavares, 385 Mass. 140, 149-53 (1982).

However, the Court did invite favorable comparison to the level of proof beyond a reasonable doubt under the humane practice rule, citing Commonwealth v. Tavares, 385 Mass. 140, 152 (1982), in contrast with Lego v. Twomey, 404 U.S. 477, 489 (1972), which set the federal level of proof at a preponderance of the evidence.

Commonwealth v. Tavares, 385 Mass. 140, 151-52 (1982).

Commonwealth v. Kincaid, 444 Mass. 381, 384 (2005), quoting Commonwealth v. Tavares, 385 Mass. 140, 156 , cert. denied, 457 U.S. 1137 (1982) (“finding of fact by the trial judge will not be deemed ‘clearly erroneous’ unless the reviewing court on the entire evidence is left with the firm conviction that a mistake has been committed”).

The judge also gave weight to the fact that juror B “noticeably hesitated” when asked if such a statement had been made, and concluded it was due to juror B’s having “said something during deliberations that he should not have.” As the judge is “in the best position to judge the weight and credibility of the evidence,” Commonwealth v. Tavares, 385 Mass. 140, 156 (1982), quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1997), we defer to his conclusions …

Commonwealth v. Lanoue, 392 Mass. 583, 586 (1984), citing Commonwealth v. Tavares, 385 Mass. 140, 145 (1982).

During his charge to the jury, the judge instructed on the “humane practice.” See Commonwealth v. Tavares, 385 Mass. 140, 149-153 (1982).

Commonwealth v. Tavares, 385 Mass. 140, 145-46 (1982).

Commonwealth v. Selby, 420 Mass. 656, 660 (1995); Commonwealth v. Tavares, 385 Mass. 140, 145 (1982).

See Commonwealth v. Grenier, 415 Mass. 680, 687 (1993); Commonwealth v. Parham, 390 Mass. 833, 841 (1984); Commonwealth v. Tavares, 385 Mass. 140, 152 (1982).

With respect to the voluntariness of the admissions, employment of a “totality of the circumstances" view, Commonwealth v. Tavares, 385 Mass. 140, 146 (1982), establishes that defendant’s decision to speak was “a free and voluntary act and was not the product of inquisitional activity which had overborne his will." Commonwealth v. Carey, 407 Mass. 528, 537-38 (1990), quoting, inter alia, Commonwealth v. Mahnke, 368 Mass. 662, 680 (1975).

See Commonwealth v. Hunter, supra (new trial required where statements admitted without judge’s determining question of voluntariness because jury might have concluded from statements that defendant was in control at time of killing); Commonwealth v. Chung, supra at 459-460 (where prosecutor referred explicitly to confession in closing to argue defendant’s sanity and confession bore on the crucial issue of insanity, it could not be considered harmless even though overwhelmin…

Commonwealth v. Selby, 420 Mass. 656, 660 (1995); Commonwealth v. Tavares, 385 Mass. 140, 145 (1982).

Commonwealth v. Tavares, 385 Mass. 140, 145 (1982), cert. denied, 457 U.S. 1137 (1982).

Instead, the defendant focuses on his previous relationship with Sergeant Urbanowicz as a confidential informant and contends that, because of that relationship and the absence of any warnings, the Commonwealth failed to satisfy the requirement that it prove beyond a reasonable doubt, see Commonwealth v. Tavares, 385 Mass. 140, 152 (1982), that the statement was voluntary.

This case is not like others, in which we have exercised our powers, involving non-lethal confrontations that have senselessly and quickly escalated into killings, Commonwealth v. Maskell, 403 Mass. 111, 117 (1988) (minor altercation over a dog escalated rapidly into shooting match); Commonwealth v. Tavares, 385 Mass. 140, 157-159 (fight was not planned en *726 counter but spontaneous reaction to alleged insults by the victim toward the defendant and others), cert. denied, 4…

See Commonwealth v. Tavares, 385 Mass. 140 , 156 n.25, cert, denied, 457 U.S. 1137 (1982) (“to ignore the *98 evidence [of the influence of racial bias in the jury room] might well offend fundamental fairness”); Commonwealth v. Fidler, supra at 197 .

However, after it became apparent from the defendant’s testimony that volun-tariness was at issue, the judge, reflecting our “humane practice,” cf. Commonwealth v. Tavares, 385 Mass. 140, 149 (1982), made a finding upon all the evidence before him that the defendant, despite his difficulties with the English language, had been made aware of the substance of the Miranda warnings and had made his statements without coercion.

Further, the absence of any objection at trial is a relevant consideration. *557 See Commonwealth v. Tavares, 385 Mass. 140, 148 (1982).

If the defendant’s second admission is introduced in evidence at retrial, and if its voluntariness is made a live issue, the judge should instruct the jury in accordance with the instruction outlined in Commonwealth v. Tavares, 385 Mass. 140, 152-153 (1982).

In his charge the judge stated in part “that anything that a defendant says has to be voluntary, he has to know what he’s doing and speak voluntarily. . . . [T]he police can’t con a man into saying something he doesn’t want to say. . . . [T]he statement of anybody being questioned by the police must be an intelligent and voluntary act.” Because Commonwealth v. Tavares, 385 Mass. 140, 152 (1982), requires the Commonwealth to prove beyond a reasonable doubt the voluntariness o…

Cf. Commonwealth v. Tavares, 385 Mass. 140, 155-156 (1982).

Commonwealth v. Tavares, 385 Mass. 140, 152 (1982).

The references to voluntariness were not sufficiently focused so to make the question a “live issue.” See Commonwealth v. Tavares, 385 Mass. 140, 150 (1982). 4.

Cf. Commonwealth v. Tavares, 385 Mass. 140, 155-156 (1982). 3.

Commonwealth v. Tavares, 385 Mass. 140, 156 (1982).

L. c. 278, § 33E, to determine if there is a “substantial likelihood that a miscarriage of justice has occurred.” Commonwealth v. Tavares, 385 Mass. 140, 149 (1982), quoting Commonwealth v. Garcia, 379 Mass. 422, 439 (1980). 2 The defendant does not distinguish between a privilege of self-defense, which, if shown, exonerates a defendant, and a showing of either (1) reasonable provocation or (2) the use of excessive force in self-defense, which, if shown, would entitle a defe…

We would reverse only a showing of grave prejudice.” Commonwealth v. Tavares, 385 Mass. 140, 149 (1982).

Although we have encouraged close adherence to the language of the Webster charge (see Commonwealth v. Pires, ante 657, 664 [1983]; Commonwealth v. Tavares, 385 Mass. 140, 147 [1982]; Commonwealth v. Wood, 380 Mass. 545, 551 [1980]; Commonwealth v. Ferreira, 373 Mass. 116 , 130 n.12 [1977]), we have upheld charges that have departed in certain respects from the Webster charge.

While these may be important characteristics to consider, see Commonwealth v. Tavares, 385 Mass. 140, 145-146 (1982); Commonwealth v. Meehan, 377 Mass. 552, 567-568 (1979), the facts as found by the judge do not support the defendant’s contentions. 4 The defendant relies heavily on a psychiatric evaluation of him, which states that several weeks before the plea “his insight and judgment [were] seriously deficient, particularly around his acknowledgement of his alcoholism and…

See, e.g., Commonwealth v. Dalton, 385 Mass. 190, 195-197 (1982); Commonwealth v. Tavares, 385 Mass. 140, 159 (1982); Commonwealth v. Cadwell, 374 Mass. 308, 315-319 (1978); Commonwealth v. Pisa, 372 Mass. 590, 597-598 , cert. denied, 434 U.S. 869 (1977); Commonwealth v. Williams, 364 Mass. 145, 151-152 (1973).

Commonwealth v. Tavares, 385 Mass. 140,145 (1982).

Commonwealth v. Tavares, 385 Mass. 140, 144-145 (1982).