COMMONWEALTH vs. JOSEPH A. MESSERE.

GREANEY, J. About 4:00 A.M. on October 4, 1980, the victim was found in his automobile in a secluded area in Canton dying of multiple stab wounds. Twelve days later the defendant was arrested on a warrant for the homicide and subsequently indicted for murder in the first degree. The evidence warranted the jury in finding the following. Prior to the homicide both the defendant and the victim had been seen at a club in Randolph. Shortly before the victim was found by the police, the defendant went to the home of a friend, Ronald Cerasulo, where he attempted to clean a blood stain from his pants. Cerasulo observed the defendant to be "drunken, unshaven [and] nervous." There he told Cerasulo that "he had stabbed a guy down the street and thought he might have killed him," after "[t]he guy had reached under [his automobile] seat for a gun." The defendant told Cerasulo that, after the incident, his girlfriend had "screwed across the highway," and he asked whether he "[s]hould throw [his knife] in the pond on his way home." Prior to trial the defendant told Cerasulo to talk to his attorney to "set up a defense of self-defense for him." Still later the defendant asked a second friend, Doris Souris, "to go to court . . . and say that [she] was [with him] at the time of the crime . . . [,] that a fight started and a knife was pulled on him," after which she "was . . . supposed to have run across the highway." The defendant offered to pay Souris $1,000 for this false testimony. The defendant also

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made several incriminating statements to the police following his arrest which will be discussed in detail later in this opinion. These statements were introduced at trial, together with other evidence which tended to establish the defendant's guilt. [Note 1] The jury convicted the defendant of murder in the second degree. Represented by new counsel on this appeal, the defendant argues that the judge erred in denying his motion to suppress three statements made to the police and in instructing the jury on the law of self-defense. He also contends that his trial counsel's disclosure of the identity of the witness Souris to the prosecution deprived him of effective assistance of counsel. We find no error and affirm the conviction.

1. The evidence at the voir dire held on the defendant's motion to suppress was uncontradicted and may be summarized as follows. The defendant was arrested on a warrant shortly after 2:00 A.M. on October 16, 1980, at his apartment in Gardner by a contingent of State and local police officers. Immediately upon arrest, and before leaving the apartment, a State police officer gave the defendant complete Miranda warnings which included advice about his right to retain counsel and to have counsel at public expense. The defendant told the officer that he understood his rights. He did not request counsel. A few minutes later Canton police Sergeant John Ruane furnished the defendant with a second set of Miranda warnings while he stood on the porch or front walk of his apartment. The defendant again acknowledged understanding of his rights and did not request a lawyer. While en route from Gardner to the Canton police station, Trooper Robert Murphy of the State police, the officer in charge of the investigation, furnished the

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defendant with a third set of Miranda warnings. The defendant did not request an attorney. No questioning occurred during this lengthy trip.

Upon arriving at the police station around 3:45 A.M., the defendant was booked and given Miranda warnings by Sergeant Ruane for a fourth time. The defendant advised Ruane that he did not wish to call an attorney or otherwise make use of the telephone. No questioning took place during the booking procedure.

The defendant was next taken to an interview room, where Trooper Murphy advised him of the nature of the charge and furnished Miranda warnings for the fifth time. At that juncture, the defendant indicated that he wished to make a statement. He then provided Trooper Murphy with a lengthy account of his movements on the night of October 3 and the morning of October 4, in which he denied seeing the victim at anytime. [Note 2] At the completion of the statement, the defendant was asked by the officer whether he had "anything else to say," and he responded, "No." The defendant expressed no desire to speak with counsel at anytime during or after the statement.

Sergeant Ruane, who had been in and out of the interview room while the defendant talked to Murphy, then took the defendant to his holding cell, where the conversation reported in the testimony set out in the margin took place. [Note 3]

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As to this conversation, Sergeant Ruane testified that he did not expect the defendant to respond to his comment about "telling the truth" because "I had told him to get hold of his attorney -- I said `Sit down with your attorney and get hold of us and we will all sit down and talk about it.'"

Trooper Murphy was immediately called to the cell, where he asked the defendant whether "he wished to speak with me again?" The defendant replied, "Yes, I do." He was taken to the interview room and furnished Miranda warnings by Murphy for the sixth time. The defendant acknowledged his understanding of the warnings, made no request for a lawyer, and stated: "I want to tell you what happened. If you have my prints, I went down the road and saw the car." The defendant then stated that he had found the victim in his vehicle after which he claimed to have made a telephone call for assistance to the fire department

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from a public telephone outside a variety store. Upon completion of this statement, the defendant expressed no desire to remain silent or to consult an attorney. Between 4:15 and 5:00 A.M., he was returned to his holding cell.

At about 5:00 A.M. Canton police Detective Vincent M. Rafferty went to the defendant's cell. Since the defendant was the only person in custody, it could be inferred from Rafferty's testimony that he was required to check on the defendant's safety approximately every thirty minutes. Rafferty had been on the police force for about eighteen years and had known the defendant for about the same period. On three or four prior occasions, Rafferty had arrested the defendant and had given him Miranda warnings. Rafferty testified that he was "fairly friendly" with the defendant, that he had not been present when the defendant was booked or when he spoke with Officers Murphy and Ruane, and that he had not previously talked with the defendant that morning. In the course of his check, Rafferty said to the defendant: "Boy, you got yourself in a mess this time, Joe. You are in a real good one and they have . . . a good case against you." The defendant responded by indicating that Trooper Murphy was a "real hard ass." Rafferty replied that he "had known [Murphy] for quite a period of time and that he was always a nice guy as far as I was concerned." The defendant then asked Rafferty, "If this was self-defense, wouldn't I be able to get a manslaughter?" Rafferty replied that Murphy was in charge of the investigation and he would have to talk to him. Rafferty left and reported the conversation to Murphy, who indicated that he did not wish to speak with the defendant again. Rafferty returned to the cell, informed the defendant of Murphy's response, then left the area and went off duty. Rafferty further testified that he had not intended to engage the defendant in conversation.

The final witness at the voir dire was an attorney from Quincy who testified that he had known the defendant for approximately eight to ten years. The defendant made a telephone call to the attorney at his home sometime between 7:00 and 7:30 A.M. on the morning of October 16 to

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arrange for representation at his arraignment. The attorney testified that he told the defendant "to say nothing, of course, the way I have told him for many years in the past. He has always had my card with him, which indicates his rights under the Fifth and Sixth Amendment[s] to remain silent." The defendant informed the attorney that he had "told the police he wasn't going to say anything . . . until [I] came down."

Based on this evidence, the judge concluded that the defendant's knowledge of his Miranda warnings was "extensive"; that he had made a voluntary, knowing and intelligent waiver of his rights; that he had been asked on several occasions whether he desired an attorney and had declined the assistance of counsel on each occasion; and that his statements to the police were "spontaneous." The judge ruled that the challenged statements were admissible and ordered the motion to suppress denied.

The defendant concedes that he understood each set of Miranda warnings and that he knowingly, voluntarily and intelligently waived his rights prior to giving his first statement to Trooper Murphy. He contends, however, that his indication to Murphy at the completion of that statement that he had nothing further to say constituted an unequivocal exercise of his right to remain silent. Based on that assumption, he argues that his subsequent statements to Officers Ruane, Murphy, and Rafferty amounted to "interrogation" within the definition given to that word in Rhode Island v. Innis, 446 U.S. 291, 300-302 (1980), in violation of the requirement that the police must scrupulously honor a defendant's assertion of his right to terminate questioning. [Note 4]

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See Miranda v. Arizona, 384 U.S. 436, 474-479 (1966); Michigan v. Mosley, 423 U.S. 96, 103-104 (1975); Commonwealth v. Brant, 380 Mass. 876, 883-884 (1980); Commonwealth v. Gallant, 381 Mass. 465, 467-468 (1980). See also Commonwealth v. Dustin, 373 Mass. 612, 616 (1977), cert. denied, 435 U.S. 943 (1978); United States v. Olof, 527 F.2d 752, 754 (9th Cir. 1975).

We do not think the defendant's remark to Trooper Murphy constituted an assertion of his right to remain silent. The remark followed the defendant's lengthy and detailed account of his whereabouts on the night of October 3 and the morning of October 4. The record indicates that the statement was offered in narrative form without any prodding or questioning by Murphy. The defendant did not unequivocally state at its completion that he did not wish to be questioned any further, contrast Commonwealth v. Gallant, supra at 466, 467-468, nor did he request the presence of a lawyer. Contrast Commonwealth v. Brant, supra at 879-880, 882-883. Read in context the remark suggests that the defendant had exhausted his memory about details of his activities at critical times. The police could properly conclude that the defendant had not said or done anything which would require them to avoid further conversation with him. It follows that his later statements to Officers Ruane, Murphy and Rafferty, all of which came within a short period of time following receipt of six sets of Miranda warnings, were admissible. [Note 5]

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In concluding that no constitutional impropriety occurred, we have considered several other factors obvious from the record. There is no claim of physical coercion, or any suggestion that the defendant's faculties were impaired by alcohol or drugs. There is nothing to indicate that the police threatened, cajoled, tricked or deceived the defendant into making statements. Contrast Commonwealth v. Dustin, supra; Commonwealth v. Jackson, 377 Mass. 319, 329 (1979). It is apparent that, at the time of arrest, the police had developed a strong case against the defendant. They thus had less incentive to seek incriminating statements, as they might from a mere suspect. Finally, the defendant was familiar with police procedures. He ignored repeated advice about the right to and need for counsel, choosing, it appears deliberately, to wait until 7:30 A.M. on October 16 to call a lawyer. Compare Edwards v. Arizona, 451 U.S. 477, 478-480 (1981). The record suggests a case in which the defendant intelligently and voluntarily exercised independent judgment not to become "imprison[ed] . . . in his privileges." Michigan v. Mosley, supra at 109 (White, J., concurring), quoting from Adams v. United States ex rel. McCann, 317 U.S. 269, 280 (1942). The motion to suppress was properly denied.

2. In the course of his instructions to the jury, the judge made the following statement: "That issue [of self-defense] is raised by a statement made by the defendant to the police concerning something that occurred down the road where this incident took place, that is, where the victim was found. But it isn't enough for the jury to find that the defendant made that statement. [You] must also find that that is actually what occurred down the road. Once you make the factfinding function, if you do perform that factfinding function, then you apply the law as to self-defense. Otherwise, you don't apply it because it has no application unless there are facts found by you to substantiate it." (Emphasis

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supplied.) The defendant argues that the emphasized language impermissibly shifted the burden of proof on the issue of self-defense to him. See Connolly v. Commonwealth, 377 Mass. 527, 532-536 (1979). We disagree.

In the course of an instruction on self-defense, the use of the word "find" should be avoided. It is not, however, a talisman of automatic error. See Commonwealth v. Carballo, 381 Mass. 227, 230 (1980); Commonwealth v. Simmons, 383 Mass. 40, 44 (1981). Rather, the charge must be examined in its entirety, see Commonwealth v. Stokes, 374 Mass. 583, 590-591 (1978), to ascertain if the offending language could have misled a reasonable juror with respect to the burden of proof. See Sandstrom v. Montana, 442 U.S. 510, 514 (1979). In the course of his fifty-four pages of instructions, the judge furnished the jury with complete and correct instructions on the law of self-defense and its application to the present case. Moreover, the judge specifically instructed, in unequivocal language on three separate occasions, that the Commonwealth had to establish the absence of self-defense by proof beyond a reasonable doubt. We see no likelihood that a reasonable juror could have interpreted the challenged instruction as requiring the defendant to prove any fact, see Commonwealth v. Simmons, supra at 44-45, and cases cited; cf. Commonwealth v. Medina, 380 Mass. 565, 577-578 (1980), a conclusion likely shared by the defendant's trial counsel, who failed to object to the instruction at the conclusion of the charge.

3. Serious dereliction of trial counsel is claimed in his handling of the disclosure of the identity of the witness Doris Souris who, it will be remembered, testified that the defendant had offered to pay her $1,000 if she would falsely state at trial that she had witnessed the defendant kill the victim in self-defense.

This witness's name arose in the course of two bench conferences. She was identified initially as a possible defense witness in response to the judge's request for a list of prospective witnesses for their disclosure to the jury. Before she

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was actually called, defense counsel advised the judge that her name had been included as a possible defense witness at the defendant's request, although he had not previously interviewed her. The police talked with Souris two days after they received the list. As a result of that interview, the prosecution decided to call her as part of its case. It is now argued that defense counsel's failure to interview Souris, and his disclosure of her identity, was serious incompetency which likely deprived the defendant of a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).

The record suggests that defense counsel may have refrained from interviewing Souris because of the defendant's representation to him that she would provide favorable testimony of self-defense. Any counsel in a criminal case who fails to interview a material witness leaves himself open, of course, to a possible claim of ineffective assistance. See Commonwealth v. Sellon, 380 Mass. 220, 226 (1980). But the damaging testimony which ultimately emerged here was not the result of any failure on the part of defense counsel. Rather, it was caused by the defendant's own misconduct in soliciting perjury and then attempting to deceive his own counsel. [Note 6] A defendant caught in his own trap cannot expect an appellate court to provide a release by an order for new trial. There is nothing in this incident, or in the trial as a whole, which suggests that defense counsel was incompetent, inefficient or inattentive to his client's interests. The record demonstrates that defense counsel presented and argued the defense vigorously and ably, and that counsel's skill probably averted the defendant's conviction of murder in the first degree. We conclude that defense counsel's performance was competent.

Judgment affirmed.