Home MAILIS M. KARVONEN, executrix vs. IDA E. LERER & others.

9 Mass. App. Ct. 827

January 11, 1980

In Karvonen v. Halmetoja, 7 Mass. App. Ct. 855 (1979), the plaintiff appealed from a portion of a judgment entered in a Probate Court, and this court, in reversing that specified segment of the judgment, made no order relative to the costs of the appeal under Mass.R.A.P.26(a), 365 Mass. 873 (1974). After the issuance of the rescript, Mass.R.A.P.28, 365 Mass. 877 (1974), the plaintiff asked the Probate Court to order payment of those costs by the defendants under that clause of rule 26(a) which directs that "if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered." The plaintiff now appeals from orders entered by the probate judge denying her costs of the appeal. The party responsible for the costs of an appeal is determined under rule 26(a) on the basis of the action taken by the appellate court on the judgment before it or as ordered by that court. The rule is unambiguous on the point that "if a judgment is affirmed or reversed in part . . . costs shall be allowed only as ordered by the appellate court." The orders are, therefore, affirmed. No party is to have the costs of this appeal.

So ordered.


9 Mass. App. Ct. 827

January 11, 1980

The defendant appeals from his conviction of voluntary manslaughter on an indictment charging murder in the first degree. There was no error. We think the instant case is controlled in all material aspects by Commonwealth v. Roy, 2 Mass. App. Ct. 14 (1974).

1. The defendant claims that certain statements made by him prior to and subsequent to his arrest were improperly admitted in evidence at trial. The defendant's argument rests on factors which he alleges jointly and severally negate a knowing and intelligent waiver of his constitutional rights at the time he made the various statements; succinctly stated, they are that he (1) was under the influence of alcohol, (2) was in an excited emotional state, (3) is of below normal intellect, and (4) was confused as to whether he in fact had been arrested. See Commonwealth v. Cruz, 373 Mass. 676 , 688 n.10 (1977). Although the judge found that the defendant perhaps was not fully aware that "he was properly arrested for murder," nevertheless, the judge concluded that the defendant understood his Miranda rights, that he knowingly and intelligently waived them and chose to make the various statements in question to the police, and that the statements were made by him freely and voluntarily. Commonwealth v. Garcia, 379 Mass. 422 , 429 (1980). Commonwealth v. Roy, supra at 21. Commonwealth v. Tisserand, 5 Mass. App. Ct. 383 ,

Page 828

388-389 (1977). We agree. Even though we are mindful that the judge's finding of waiver is entitled to "substantial deference" (Commonwealth v. Roy, supra at 19), we have read the transcript of the hearing on the motion to suppress with "special care" (Haley v. Ohio, 332 U.S. 596, 599 [1948]) and are able to conclude that despite the defendant's circumstances, the waiver was valid. See Commonwealth v. Sires, 370 Mass. 541 , 543-545 (1976). See also Davis v. North Carolina, 384 U.S. 737, 741-742 (1966). "The influence of . . . alcohol does not . . . automatically invalidate a waiver." Commonwealth v. Hooks, 375 Mass. 284 , 289 (1978). "Similarly, an adult with a diminished or subnormal mental capacity may make an effective waiver of his rights and render a voluntary, knowing and admissible confession." Commonwealth v. Daniels, 366 Mass. 601 , 606 (1975). See Commonwealth v. White, 362 Mass. 193 , 196 (1972). Contrast Commonwealth v. Roy, supra at 19 n.2. This is not a case like Commonwealth v. Hosey, 368 Mass. 571 , 575-579 (1975), where the police should have discerned from the defendant's conduct and characteristics or from other attendant circumstances that the defendant was incapable of making a knowing and intelligent waiver. Contrast Commonwealth v. Garcia, supra at 429-430 & n.4; Commonwealth v. Roy, supra at 20. Moreover, notwithstanding the expert medical testimony (see Commonwealth v. Daniels, supra at 608 n.6), our examination of the details of the interrogation fails to uncover any conduct on the part of the police that offends due process. See Commonwealth v. Roy, supra at 19; Commonwealth v. Daniels, supra at 607.

2. Although we agree with the defendant that it would have been preferable for the trial judge to give the complete sample instruction set out in the margin in Commonwealth v. Rodriguez, 370 Mass. 684 , 692 n.10 (1976), we are unable to say that the charge was constitutionally inadequate. Compare Commonwealth v. Stokes, 374 Mass. 583 , 591-592 (1978). See also Commonwealth v. Kelley, 359 Mass. 77 , 92 (1971). When the charge is read in its entirety (see Commonwealth v. Benders, 361 Mass. 704 , 707 [1972]), it is quite clear that the judge adequately instructed the jury that the burden was on the Commonwealth to "prove beyond a reasonable doubt that the defendant did not act in self-defense." See Commonwealth v. Fluker, 377 Mass. 123 , 129-130 (1979). Contrast Commonwealth v. Collins, 374 Mass. 596 , 599-600 (1978).

3. The defendant's motion for a new trial raises no question of law not already disposed of above.

Judgment affirmed.

Order denying motion for new trial affirmed.