COMMONWEALTH vs. DENNIS HADLEY.

SIKORA, J. The defendant appeals from a Superior Court jury

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conviction of involuntary manslaughter by battery, G. L. c. 265, § 13. [Note 1] He contends that the evidence was insufficient to support his conviction and that the judge wrongly refused to suppress two separate sets of statements. For the following reasons, we affirm. Background. The evidence permitted the jury to find the following facts. The defendant, Dennis Hadley, and Daniel McMullen occupied the same cell at the Worcester County jail and house of correction. [Note 2] On February 3, 2005, at about 2:30 A.M., two other inmates overheard banging and yelling from the cell. One inmate heard Hadley say, "Don't make me put my boots on" (which in prison slang means that an individual is ready to fight) and "I don't want to hurt you." The other inmate heard Hadley say "Don't do it," "I'm trying to save your life," and "Just stay down."

At about the same time, Hadley called for correction officers to come to the cell. The officers approached and saw that McMullen was sitting on a stool with a bleeding lip and abraded chin. They noticed also that Hadley was "quite calm." Hadley told them that McMullen and he had disagreed. The officers removed Hadley to an empty cell. Sergeant Thomas Chabot arrived soon afterward and took a written statement from McMullen. McMullen then went to the hospital to have his lip sutured. He reported no other complaints of pain and returned to the jail later that morning.

After speaking to McMullen, Sergeant Chabot went to Hadley's cell at about 3:20 A.M. and recited Miranda warnings to him. Hadley affirmed that he understood the warnings and signed a Miranda waiver form. [Note 3] Sergeant Chabot asked Hadley whether he had kicked McMullen. Pausing momentarily before answering,

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Hadley denied kicking McMullen. He explained, however, that he had pushed McMullen, who fell against a bunk and onto the floor, because McMullen had asked Hadley to return his cards and had pointed a finger in Hadley's face. At the conclusion of the interview, Hadley made a brief written statement: "My cellie Dan[,] [h]e stuck his middle finger in my eye[.] I said don't and I pushed back on to his bunk and he fell off." Sergeant Chabot testified that during the interview Hadley had acted normally.

At 5:25 P.M. that same day, McMullen developed abdominal pain and very low blood pressure and returned to the hospital. He was diagnosed with a lacerated spleen and internal bleeding, despite the lack of any visible bruising on his abdomen. McMullen suffered also from serious pre-existing medical conditions. [Note 4] Although the doctors were able to stop McMullen's internal bleeding, he developed a serious infection and multiple organ failure which led to his death on February 23, 2005, twenty days after his altercation with Hadley. The medical examiner attributed McMullen's death to "multiple complications of splenic laceration due to blunt impact." He regarded underlying liver disease and an enlarged vulnerable spleen as "contributory factors." He testified that the injury to McMullen's enlarged spleen was consistent with the infliction of some trauma, including a kick.

More than two years later, on May 28, 2008, Hadley spoke to correction Officer John Adams to request relocation to another cell in order to prepare for trial of the offenses which he was alleged to have committed against McMullen. During the conversation, Hadley asked Officer Adams, "Do you know why I'm here?" Officer Adams answered that he knew only the charges against him. Hadley volunteered that he had been upset because McMullen had used his cards and had kicked McMullen in the mouth and then in the torso as McMullen had attempted to get up. He mentioned also that he was unconcerned about his upcoming trial because the prosecution had lost his boots.

Before trial, Hadley moved to suppress his statements to

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Sergeant Chabot. After an evidentiary hearing, the motion judge, who was also the trial judge, denied the motion upon his finding that Hadley, although diagnosed with bipolar disorder and having a history of making ostensibly delusional statements, had made his statements knowingly, intelligently, and voluntarily. Trial began before a jury, during which Hadley moved for dismissal of the indictments "or suppression" of his statements to Officer Adams. After a voir dire hearing, the judge denied the motion. He found that Hadley's disclosures had been spontaneous. At the conclusion of trial, the jury convicted Hadley of involuntary manslaughter. The judge sentenced him to four to seven years in prison.

Analysis. Hadley submits three arguments: that there was insufficient evidence to support the verdict of involuntary manslaughter; that the judge incorrectly denied his motion to suppress because his statement to Sergeant Chabot was not knowing, intelligent, and voluntary; and that the judge wrongly denied his motion to suppress statements made to Officer Adams because the officer had failed to inform him that he should refrain from speaking in the absence of his attorney.

1. Sufficiency of the evidence for the conviction. Hadley contends specifically that the evidence did not permit the finding that he knew or should have known that his conduct could endanger McMullen's life. Viewing the evidence in the light most favorable to the Commonwealth, we conclude otherwise. See Commonwealth v. Latimore, 378 Mass. 671 , 676-677 (1979).

To establish involuntary manslaughter by battery, the Commonwealth had to prove beyond a reasonable doubt that the defendant had committed an unintentional, unlawful killing and, more specifically, (1) that he had committed a battery that he knew or reasonably should have known either (a) endangered human life, or (b) created a high degree of likelihood of substantial harm to the victim; and (2) that the battery caused the death of the victim. See Commonwealth v. Williams, 428 Mass. 383 , 390 (1998). See also Commonwealth v. Hailey, 62 Mass. App. Ct. 250 , 253-254 (2004). Hadley disputes only the sufficiency of evidence of the first element.

Upon the first element, the judge charged that the defendant must reasonably have known that his battery endangered human

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life. The evidence permitted that finding. Neighboring cellmates overheard yelling and banging from the cell of Hadley and McMullen. They heard Hadley tell McMullen to keep down and that, in prison jargon, he was ready to fight McMullen. Subsequently, Hadley disclosed to Officer Adams that he had kicked McMullen in the mouth and had then kicked him in the torso as he tried to get up; and that the jail had lost his (Hadley's) boots. Finally, the medical examiner testified that McMullen's death resulted from blunt trauma to the spleen consistent with the impact of a kick. A rational jury could have found beyond a reasonable doubt that the defendant reasonably should have realized that successive booted kicks to the head and the midsection, the site of multiple vital organs, endangered the victim's life. That finding need only be permissible, not compelling. Commonwealth v. Platt, 440 Mass. 396 , 400 (2003).

Hadley argues that he could not have known that his battery endangered McMullen's life because he did not know of McMullen's pre-existing conditions and susceptibility. That lack of awareness does not eliminate his culpable mentality. The anatomy of the torso includes the heart, lungs, liver, pancreas, spleen, large intestine, and aorta artery. [Note 5] In circumstances in which the defendant pushed or knocked the victim to the lower bunk or floor, kicked him in the head, and then without obstruction kicked him in the abdomen, he knowingly carried out a severe battery and created the risk of fatal injury. [Note 6] The defendant reasonably

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should have appreciated that risk, without knowledge of the victim's special vulnerability.

2. Miranda. Hadley argues also that the judge incorrectly denied his motion to suppress his written statement to Sergeant Chabot. He asserts that, in violation of his Miranda rights, he did not knowingly, intelligently, and voluntarily give statements to Sergeant Chabot because he suffered from a severe mental illness.

At the suppression hearing, the evidence of the events of the morning of February 3, 2005, closely tracked the evidence submitted at trial. The judge credited the testimony of four correction personnel who responded to the altercation between Hadley and McMullen. They testified that Hadley did not appear confused, followed directions ably, responded appropriately to their questions, and exhibited no signs of impairment by medication, controlled substance, or other condition. [Note 7] Sergeant Chabot, to whom Hadley made his written statement, reported that Hadley was calm and exhibited no unusual behavior indicative of a delusion. In addition, the Commonwealth proffered expert testimony from Dr. Malcolm Rogers, a psychiatrist who evaluated Hadley and reviewed his medical records. The judge specifically credited Dr. Rogers's testimony that no evidence in the record suggested that Hadley, who had been diagnosed with bipolar disorder, lacked the capacity to make a valid waiver of his Miranda rights. Upon this evidence, the judge found beyond a reasonable doubt that Hadley had knowingly, intelligently, and voluntarily waived his Miranda rights.

In reviewing a motion to suppress, we are bound by the motion judge's findings of fact absent clear error. Commonwealth v. Thomas, 429 Mass. 403 , 405 (1999). "We independently

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determine whether the judge correctly applied constitutional principles to the facts as found." Commonwealth v. Isaiah I., 450 Mass. 818 , 821 (2008). "Where there is a claim of mental illness, the Commonwealth must show that the waiver was knowing, intelligent, and voluntary, 'notwithstanding [that] mental illness.' " Commonwealth v. Druce, 453 Mass. 686 , 699 (2009), quoting from Commonwealth v. Zagrodny, 443 Mass. 93 , 99-100 (2004).

Ample evidence in the record supports the judge's denial of Hadley's motion. The judge credited the testimony of all the correctional officers and the Commonwealth's expert. Through correctional personnel, the Commonwealth demonstrated that Hadley had behaved calmly and rationally at the time of his Miranda warning, had signed the waiver, and had made his written statement. Through Dr. Rogers, the Commonwealth showed that Hadley was competent and able to waive his Miranda rights. Evidence that Hadley had refrained from any mention to correction personnel of his kick to McMullen's torso further established his presence of mind. Altogether this evidence proved beyond a reasonable doubt that Hadley competently waived his Miranda rights.

3. Admission to Officer Adams. Finally, Hadley maintains that the judge improperly denied his motion to suppress his statements to Officer Adams. He argues that Adams's failure to advise him not to speak in the absence of his attorney violated his right to counsel under the Sixth Amendment to the United States Constitution. [Note 8] We disagree.

The judge allowed voir dire questioning of Officer Adams and Sergeant Michael Sampson. He generally credited their testimony and found the following facts. Hadley approached Officer Adams to ask for permission to move from one cell to

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another so that Hadley could prepare for his upcoming trial in this case. Hadley asked Adams whether he knew why Hadley was going to trial. Officer Adams stated that he knew generally about the case. Hadley continued to explain, without any prompting from Officer Adams, that McMullen and he had argued over his cards and that he had kicked McMullen first in the mouth and then in the torso as McMullen was trying to get up. He added, "It doesn't matter because the jail lost my boots."

After listening to Hadley, Adams agreed to move him to another cell, and their conversation, which took place amid other inmates, ended. Officer Adams casually mentioned his conversation with Hadley to Sergeant Sampson, a residential neighbor of his. A few weeks later, Sampson, after reading an article about Hadley's trial, told a State police officer involved in Hadley's case about Adams's conversation with Hadley. State police then asked Officer Adams to make a statement. Upon this evidence, the trial judge concluded that the statements made by Hadley to Adams were not the result of any interrogation or questioning but were merely spontaneous conversation uttered by Hadley.

The judge ruled correctly. Hadley volunteered the inculpatory information. Adams passively received the information gratuitously furnished by Hadley. He engaged in no focused questioning and did not elicit any statements or otherwise knowingly exploit an opportunity to question Hadley without counsel present. [Note 9] See Commonwealth v. Bandy, 38 Mass. App. Ct. 329 , 334 (1995). See also Commonwealth v. Hilton, 443 Mass. 597 , 618 (2005). These circumstances did not bring into play Hadley's Sixth Amendment right to counsel. The trial judge correctly denied Hadley's motion to suppress.

Conclusion. Sufficient evidence supported Hadley's conviction for involuntary manslaughter. His inculpatory statements were properly in evidence.

Judgment affirmed.