COMMONWEALTH vs. JUNIOR U. CHUNG.

LIACOS, J. Notwithstanding his defense of lack of criminal responsibility, the defendant was found guilty by a jury on indictments charging murder in the first degree, unlawfully carrying a firearm, larceny, assault and battery by means of a dangerous weapon, assault with intent to murder, and armed robbery. He was sentenced to life imprisonment on the conviction of murder in the first degree. The larceny conviction was placed on file. Other sentences on the related indictments were made to run concurrently with the sentence on the murder indictment, except for the armed robbery as to which a sentence of ten to twelve years was imposed from and after the sentence on the murder indictment. The defendant's appeal was ordered dismissed in May, 1977, but was reinstated by a single justice of this court in October, 1978.

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That appeal is now before us under the provisions of G. L. c. 278, Sections 33A-33G. We reverse.

The defendant claims reversible error on three grounds. Because we agree with the defendant's second claim, that the judge erred in his instruction to the jury with respect to the issue of the voluntariness of the defendant's confession, we need not expound on the other issues argued. [Note 1]

We state the pertinent facts. The testimony presented at trial as to the commission of the alleged criminal acts by the defendant was essentially undisputed. At about 5 P.M. on February 8, 1974, the defendant entered Baker's Shoe Store on Winter Street in Boston, and, brandishing a revolver, [Note 2] demanded money from Shirley Innis, a store employee tending the cash register. After seizing some money, the defendant was confronted by another employee, Stephen Linton, and he proceeded to chase Linton out of the store. Linton ran down Winter Street and fell to the ground. The defendant struck him with the pistol, and ran into the Winter Street MBTA subway station. Shortly thereafter, Boston police officer John Murphy,

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and Henry J. Delorey, an off duty MBTA employee, pursued the defendant into the station with Linton behind them. A struggle followed. One of the men struck the defendant with a nightstick. During the scuffle, Murphy's revolver dropped to the floor, and the defendant picked it up. He fired several rounds at Delorey and Murphy, and struck both of them. He then left the scene, and was arrested at his home shortly thereafter. As a result of wounds received, Delorey died and Murphy suffered severe cerebral damage.

As part of its case-in-chief, the prosecution sought to introduce in evidence a tape recording of an inculpatory statement made by the defendant three hours after the crimes were committed. One of the prosecution's stated reasons for playing the tape was that "the way the defendant speaks is relevant and material, the way he responds is relevant and material to the issue that will be raised, to wit, the psychiatric defense." Defense counsel sought and was granted a voir dire without the presence of the jury as to (1) whether the Miranda rights had been read to the defendant, and (2) whether, in light of the defendant's psychological condition, he validly waived those rights. Because of a "logistical problem," however, defense counsel was unable to produce at the voir dire, psychiatric testimony with respect to the defendant's mental condition at the time of the confession. At the close of the voir dire, and before the jury were called back into the court room, the judge determined that the proper Miranda warnings had been given, that the defendant had "freedom of choice" and the "rational intellect to make the statement which he did," and that "there was an intelligent, voluntary waiver."

Anticipating "significant psychiatric evidence on behalf of the defendant," defense counsel requested an instruction, to be given after such evidence had been presented, which would direct the jury to consider the defendant's mental condition at the time of the statement with respect to the question of valid waiver. In response,

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the judge said, "Of course, I will tell the jury at the end of the case that it's up to them to decide what the facts are, and I will give them all the law on the point." [Note 3] The tape of the defendant's statement was then played before the jury.

The defendant relied entirely on the defense of insanity. Dr. Daniel M. Weiss, a psychiatrist and the key defense witness, testified that he first visited the defendant on February 15, 1974, and saw him on at least eight occasions prior to the trial. In Dr. Weiss's opinion, the defendant was suffering from a schizophrenic reaction of the paranoid type, severe and chronic, and this condition had been present in the defendant since before the commission of the crimes charged. More specifically, Dr. Weiss expressed the opinion that on February 8, 1974, as a product of mental disease, the defendant lacked substantial capacity to appreciate the criminality or wrongfulness of his acts, and lacked the ability to conform his conduct to the law. In corroboration, Dr. Eugene J. Balcanoff, court clinic psychiatrist for the Superior Court in Suffolk County, testified that he had examined the defendant in March and April of 1974, and that as of the interview of April 2, at least, it was his opinion that the defendant was "probably mentally ill, actively so."

In addition, the two sisters and the landlady of the defendant were called, each of whom testified to having

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witnessed irrational and bizarre behavior on the part of the defendant on various occasions prior to the commission of the crimes alleged. In rebuttal, the Commonwealth presented Dr. Leo Alexander who testified that in his opinion, based primarily on two psychiatric examinations occurring approximately seventeen and twentyfour months after the commission of the crimes, the defendant was not legally insane on February 8, 1974. [Note 4]

We focus now on a particular segment of the trial judge's instruction to the jury, for therein lies the error requiring reversal of the convictions. After concluding the general instructions, the judge discussed the Miranda warnings. The judge stated: "The United States [Supreme] Court has held that if a person is taken into custody and had his freedom of access deprived or restrained in any significant way, certain procedural safeguards must be taken before the police may interrogate the person." After enumerating the warnings which are required to be given, the judge continued: "If the person has been informed of the foregoing rights and makes an intelligent, voluntary, and knowing waiver, he may then be questioned by the police." The judge then recapitulated some of the testimony of the police officers who had advised the defendant of his constitutional rights prior to his taped confession. The judge next remarked: "Then he gave the rights as you will recollect that he gave them according to your memory. So the law regarding Miranda, he was giving the Miranda Warning, once according to the evidence in the bathroom and the apartment house, and once in the police station when he gave a statement that was recorded. You heard the tape recording. I have read to you what the Miranda Warnings require, and you have heard both police testify about the

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warnings they gave. I have read to you about the waiver, and so forth, and I will now leave that to your own recollection." These instructions as given, lacking further elaboration, were erroneous.

It is the long-established practice in this Commonwealth that the voluntariness of a confession is first to be determined by the judge, absent the jury. Only if the judge finds a confession to be voluntary does he submit it to the jury, with the instruction that they may not consider it if they decide that it is involuntary. "The judicial finding is required by the Federal Constitution; the subsequent jury determination is not, but it is a `humane practice' well established in this Commonwealth." Commonwealth v. Johnston, 373 Mass. 21, 24 (1977). See Commonwealth v. Harris, 371 Mass. 462, 467-474 (1976), and cases cited.

In determining whether a confession is "the product of any meaningful act of volition," Commonwealth v. Masskow, 362 Mass. 662, 666 (1972), quoting from Blackburn v. Alabama, 361 U.S. 199, 211 (1960), [Note 5] we have become increasingly sensitive to consideration of the defendant's mental condition. See Commonwealth v. Johnston, supra;

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Eisen v. Picard, 452 F.2d 860, 863-865 (1st Cir. 1971), cert. denied, 406 U.S. 950 (1972); United States v. Silva, 418 F.2d 328, 330 (2d Cir. 1969). If the defendant comes forward with evidence of insanity at the time of his confession, the judge is obliged initially to determine whether the statements given were the "product of a rational intellect as part of the issue of voluntariness." Johnston, supra at 25. Should the judge admit the confession, and if credible evidence of insanity at the time of the confession is presented to the jury, our practice requires jury reconsideration as to the question of the defendant's rationality, likewise "as part of the issue of voluntariness."

This procedure was not followed in the case before us. As described above, a voir dire was held, in light of allegations of the defendant's insanity. The judge found that the proper Miranda warnings had been given, that the rights enumerated therein had been voluntarily waived, and that the defendant "had the rational intellect to make the statement which he did." [Note 6] The confession was admitted in evidence. Subsequent to its admission, the defendant introduced psychiatric testimony as to his insanity prior to, during, and after the commission of the crimes. That evidence was certainly sufficient to raise the issue whether the defendant was insane at the time he purportedly waived his rights and gave the confession. [Note 7]

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Under our "humane practice," the judge should have submitted to the jury the question whether the confession was the product of a rational intellect. [Note 8]

The judge in this case did not instruct the jury clearly on their responsibility with regard to this issue. His only reference to the question of voluntariness of the confession, a reference tangental at best, involved his comments as to the Miranda warnings. The judge stated that once a person has been informed of his Miranda rights and makes an intelligent, voluntary, and knowing waiver, he may be questioned by the police. The judge noted that the defendant had indeed been questioned by the police. Finally, he remarked: "I have read to you about the waiver, and so forth, and I will now leave that to your own recollection." These comments did not adequately discharge the judge's duty to instruct the jury as to their role in determining the voluntariness of the confession. It is conceivable that the jury supposed the judge to be instructing them to make their own determination regarding the voluntariness of the defendant's waiver, as a component of their responsibility to decide on the over-all voluntariness of the confession. [Note 9] It is at least as likely,

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however, that the jury understood the judge to mean that, since the police had questioned the defendant, and since knowing, intelligent, and voluntary waiver is a prerequisite to such questioning, the defendant had confessed voluntarily. Further, the jury might well have viewed this determination as conclusive.

While the failure of the judge to instruct the jury as to its role in determining the voluntariness of the confession was error, the improper consideration of the statement, in so far as it bore on the defendant's commission of the acts, might be treated as harmless, in light of the overwhelming evidence that the defendant committed those acts. See Commonwealth v. Masskow, supra at 668. [Note 10] The question whether the waiver and the confession were the product of a rational mind, however, bore on the crucial issue of insanity as well. With respect to this issue, we cannot say that the judge's error was harmless. In his closing argument, the prosecutor referred explicitly to

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the taped statement as pertinent to the question of the defendant's sanity at the time he committed the acts. [Note 11] The prosecutor urged the jury to regard the statement as evidence of sanity. We cannot say that the judge's charge did not have the effect of bolstering the prosecutor's contention. The pertinent portion of the instruction could have been understood to be an irrefutable factual finding, announced by the judge, as to the defendant's voluntary, rational waiver of his constitutional rights. [Note 12] That portion of the charge may well have influenced the jury to decide that the confession was the product of a rational intellect. Ultimately, it may have tipped the scales against the insanity defense. Accordingly, the judgments are reversed, the verdicts are set aside, and the case is remanded to the Superior Court for a new trial.

So ordered.