Opinion
March 1, 1971.
Terence M. Troyer, Legal Assistant to the District Attorney, for the Commonwealth.
Alfred E. Nugent for the defendant.
A judge of the Superior Court under the provisions of G.L.c. 278, § 30A, has reported the following question to us: "Where a statement, inculpatory in nature, is taken from a defendant, prior to the effective date of the Miranda decision, and the defendant had not been specifically advised of his right to counsel, paid for by the government, is that statement admissible in evidence in a trial of the case . . . [after the Miranda decision] where the indictment and arraignment took place prior to the effective date of Miranda, i.e., . . . [June] 13, 1966?" The defendant was indicted on September 10, 1965, for murder, stood mute at his arraignment when a plea of not guilty was entered, and after observation was ordered committed to the Bridgewater State Hospital until further order of the court. On November 20, 1968, the medical director reported that he was competent to stand trial. It appears from a statement made to the court by counsel for the defendant, agreed to by the Commonwealth, that the warnings given to him on police interrogation did not include a statement that counsel might be appointed for him if he were indigent. Our review of the pertinent decisions on this question, Miranda v. Arizona, 384 U.S. 436, Commonwealth v. Wilbur, 353 Mass. 376, and Commonwealth v. Mele, ante, 225, indicates to us, particularly where the trial of this case was not commenced before the Miranda decision, that the answer to the question contained in the report is "No." Compare Johnson v. New Jersey, 384 U.S. 719. Further proceedings will be conducted in the light of that answer.
So ordered.