
3 Mass. App. Ct. 226 (1975)
326 N.E.2d 355
COMMONWEALTH
vs.
HOMER JOHNSON, JR.
Appeals Court of Massachusetts, Suffolk.
November 11, 1974.
April 23, 1975.
Present: HALE, C.J., ROSE, KEVILLE, GRANT, & ARMSTRONG, JJ.
Calvin J. Wier for the defendant.
D. Lloyd Macdonald, Assistant District Attorney, for the Commonwealth.
ARMSTRONG, J.
The defendant was convicted of murder in the second degree for the killing of one Matt Mayes on *227 the morning of March 24, 1973. Police, called to the scene in the Roxbury district of Boston, found Mayes on the front landing of his house, bleeding from the chest. Several persons were there, Including Mayes' wife; someone directed the police to the defendant's residence just around the corner.[1] There were drops of blood leading from Mayes' front landing to the defendant's apartment, where the police found the defendant, noticed that he was bleeding from his right hand, arrested him for the murder (by stabbing) of Mayes, informed him of his Miranda rights, and asked him if he had the murder knife, which he denied. At the police station, in the presence of a stenographer, the defendant was again given the Miranda warnings and was then interrogated for approximately ten minutes. He admitted stabbing Mayes in a fight instigated by Mayes, who attacked the defendant with a knife, and witnessed (the defendant said) by several persons whom he named, including Mayes' wife and the defendant's brother-in-law. The defendant said that he did not know where he got the knife with which he stabbed Mayes. He surmised that one of the eyewitnesses might have given it to him or that he might have succeeded in taking Mayes' knife during the combat. The defendant denied being under the influence of drugs or alcohol, and appeared to the police to be in full possession of his faculties, although upset and remorseful about the killing. He did not sign a written statement.
By Monday, March 26, the date scheduled for arraignment, the defendant's behavior had become hostile and marked by violent outbursts. On recommendation of a court clinic psychiatrist, the defendant was committed to the Bridgewater State Hospital for observation to determine his competency to stand trial and his criminal responsibility. *228 See G.L.c. 123, § 15(b), as in effect prior to St. 1973, c. 569, §§ 5 and 6. He was determined to be competent to stand trial.
The Commonwealth's case was brief. Two police officers described what they had observed at the scene of the crime and the arrest of the defendant. A psychiatrist from the Bridgewater State Hospital was permitted to testify concerning the mental condition of the defendant, apparently for the purpose of establishing the voluntariness of the statement made by the defendant at the police station. The police officer who had interrogated the defendant then introduced the statement. The Commonwealth then rested.[2]
This appeal (taken under G.L.c. 278, § 33B) raises three issues: (1) the admissibility of the psychiatrist's opinion before the jury, (2) the admissibility of the defendant's statement at the police station, and (3) the denial of the defendant's motion, at the close of the Commonwealth's case, for a directed verdict as to so much of the indictment as charged murder in the second degree.
1. The psychiatrist examined the defendant on April 10, 1973, and on the basis of that examination and results of various tests performed by others, testified that on April 10 the defendant, although of borderline intelligence (I.Q. 73), did not exhibit mental illness or disturbance and appeared to understand the nature of his acts and of the criminal proceedings in which he was involved. The psychiatrist specifically declined, however, to draw any inference or express any opinion concerning the mental condition of the defendant on March 24 (when the homicide occurred *229 and the defendant made his statement at the police station) or March 26 (when the arraignment was postponed). Nevertheless, the opinion was relevant and properly admitted, for evidence of the defendant's competency on April 10, if accepted, makes his competency on March 24 "more probable than it would be without the evidence." McCormick, Evidence, § 185, p. 437 (2d ed. 1972).
2. The defendant argues that, although the Miranda warnings, as set out in the margin,[3] were given before he made his statement at the police station, the record does not demonstrate knowing and intelligent waiver by him of his rights. He argues from the following passage in Miranda v. Arizona, 384 U.S. 436, 470 (1966): "An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given." And again, at 475: "An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver."
*230 The defendant points out that he was never asked, in so many words, "Do you wish to have a lawyer present?" or "Do you wish to answer questions without having a lawyer present?" The defendant concedes, as he must, that the Miranda case does not require that those questions be asked. The warnings the defendant was given have been held sufficient on many occasions. See n. 3. Rather, the defendant argues that by such questions the Commonwealth might have demonstrated a waiver of rights, and that by failing to ask such questions the most that the Commonwealth can be said to have demonstrated is an understanding (but not a waiver) of rights.
The contention is forcefully and skillfully presented, and, if this were a case of first impression, we would have difficulty in reconciling the facts of this case with the language quoted from the Miranda case. But a long line of cases in various Federal Courts of Appeal appears to have established a working rule that, if the record demonstrates that a defendant has been clearly and accurately told of the Miranda rights and that he has affirmatively acknowledged his understanding of those rights, a knowing and intelligent waiver of those rights may be inferred, in circumstances not otherwise casting doubt on voluntary waiver[4], from his proceeding to answer questions without asking for a lawyer. The leading case appears to be United States v. Montos, 421 F.2d 215, 223-224 (5th Cir.1970), cert. den. 397 U.S. 1022 (1970). Other cases applying the rule are United States v. Lamia, 429 F.2d 373, 375-377 (2d Cir.1970), cert. den. 400 U.S. 907 (1970); United States v. Guzman-Guzman, 488 F.2d 965, 966-967 (5th Cir.1974); United States v. Ganter, 436 F.2d 364, 369-371 (7th Cir.1970); *231 Hughes v. Swenson, 452 F.2d 866, 867-868 (8th Cir.1971); United States v. Hilliker, 436 F.2d 101, 102-103 (9th Cir.1970), cert. den. 401 U.S. 958 (1971); United States v. Moreno-Lopez, 466 F.2d 1205 (9th Cir.1972); United States v. Johnson, 474 F.2d 6 (9th Cir.1973); and Bond v. United States, 397 F.2d 162, 164-165 (10th Cir.1968), cert. den. 393 U.S. 1035 (1969). See also Pettyjohn v. United States, 419 F.2d 651, 654-655 (D.C. Cir.1969), cert. den. 397 U.S. 1058 (1970), and United States v. Stuckey, 441 F.2d 1104, 1105 (3d Cir.1971), cert. den. 404 U.S. 841 (1971). The rule has been applied in this Commonwealth, most recently in Commonwealth v. Roy, 2 Mass. App. Ct. 14, 18-20 (1974), which controls on the facts of the present case.
The knowing and willing quality of the defendant's waiver and the voluntariness of his statement are not cast in substantial doubt by his borderline intelligence (which appears to have been greater than that of the defendants in Commonwealth v. White, 362 Mass. 193 [1972], and Commonwealth v. Daniels, 366 Mass. 601, 607 [1975]), or by his suggestion that he felt dizzy, as if he had been drugged; there was substantial evidence, in the testimony of the psychiatrist, in the testimony of the police officer who conducted the interrogation, and in the transcript of that interrogation, that the defendant had the capacity to understand and did in fact understand what was transpiring and what was being said to him.
3. The defendant's next contention is that the trial judge erred in denying his motion, at the close of the Commonwealth's case, for a directed verdict as to so much of the indictment as charged murder in the second degree. His argument is that the Commonwealth's entire case rested on the defendant's police station statement and that statement makes out at best a case of manslaughter. In the highly unusual circumstances of this case, a majority of the panel agree with the defendant's contention, for the following reasons.[5]
*232 The characteristic distinction between murder and manslaughter is malice. Commonwealth v. Webster, 5 Cush. 295, 304 (1850). Malice may ordinarily be inferred from the intentional use of a deadly weapon. Commonwealth v. Jones, 366 Mass. 805, 809 (1975). Commonwealth v. Boyd, 367 Mass. 169, 184 (1975). Commonwealth v. York, 9 Met. 93 (1845), established that when the Commonwealth has proved intentional homicide beyond a reasonable doubt, the burden is upon the defendant to show by a preponderance of the evidence that the circumstances in which the killing occurred preclude malice, unless the circumstances of palliation or mitigation appear from the Commonwealth's evidence. See Commonwealth v. Webster, supra, at 305. Where testimony is adduced which shows such circumstances, the jury may believe the testimony, and return a verdict of manslaughter, or disbelieve the testimony, and return a verdict of murder based on the inference of malice drawn from the intentional homicide. Commonwealth v. Leate, 352 Mass. 452, 457-458 (1967). Commonwealth v. Rollins, 354 Mass. 630, 635 (1968). Commonwealth v. Talbert, 357 Mass. 146, 148 (1970).
An exception to this general principle has been recognized where the only evidence which proves the intentional homicide itself shows it to have been without malice. Perkins, Criminal Law, 50 (2d ed. 1969). Warren, Homicide, § 187, pp. 191, 196-197 (1938). See People v. Mercer, 210 Cal. App.2d 153 (1962); Jones v. State, 212 Ga. 195, 196, 198 (1956); Thomas v. State, 86 Ga. App. 15 (1952); and State v. Copenbarger, 52 Idaho 441, 451 (1932). See also People v. Jordan, 4 Ill.2d 155 (1954); State v. Whited, 360 Mo. 956, 960-961 (1950); and State v. Rivers, 133 Mont. 129, 132-133 (1958). There has come to our attention no prior Massachusetts case which has presented the question whether this limited exception is part of our law. A majority of the panel feel that the exception should be recognized, and that the present case falls within it.
The Commonwealth introduced no evidence from which *233 the jury might have found that the defendant killed Mayes other than the statement the defendant made at the police station. The circumstances of mitigation or palliation were an integral part of the defendant's admission. There was, in the opinion of such majority, no basis (such as inconsistency or implausibility) upon which the jury might justifiably have accepted the portion of the transcribed statement which admitted the stabbing but rejected the portion which described the factual context in which it occurred. The Commonwealth was not bound by the evidence of palliating circumstances it introduced; but as it introduced nothing to contradict that evidence, and nothing other than that evidence to show that the defendant intentionally killed Mayes, it has not proven the existence of malice, but has only proven the absence of malice.
The transcribed statement did not show self-defense, in the legal sense. It did not show that the defendant had no avenue of escape, or that he availed himself of all proper means to avoid physical combat, or that he used no more force than was necessary to defend himself. Commonwealth v. Kendrick, 351 Mass. 203, 211-212 (1966). Rather, it showed a sudden combat in which Mayes was initially the aggressor and in which the defendant's intention to stab Mayes was formed in the heat of the sudden combat. Commonwealth v. Baker, 346 Mass. 107, 119 (1963). The Commonwealth, in other words, proved a case of voluntary manslaughter. Commonwealth v. Webster, supra, at 305. Commonwealth v. Young, 326 Mass. 597, 601 (1950). Commonwealth v. Baker, supra. Commonwealth v. Spear, 2 Mass. App. Ct. 687, 692 (1974). It proved nothing more.
The jury's verdict of guilty of murder in the second degree cannot be sustained as such, but may stand as a verdict of guilty of manslaughter. Commonwealth v. Novicki, 324 Mass. 461, 467 (1949). Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 119-120 (1974).
The judgment is vacated, and the defendant is to be resentenced in the Superior Court, as upon a verdict of guilty of manslaughter.
So ordered.
NOTES
[1]  The record reveals nothing more of what these persons told the police, and none of them, and none of the persons whom the defendant claimed witnessed the stabbing, appeared at the trial in March, 1974. A police officer produced evidence of the death of one of the eyewitnesses and stated that the police had searched for others but had been unable to find them.
[2]  The defendant took the stand in his own behalf, denied remembering making the statement at the police station, and gave a story in conflict with it. Its gist was that the defendant had gotten the cut breaking up a knife fight between Mayes and two men whom Mayes suspected of improper involvement with Mayes' wife, that Mayes was uninjured when the defendant left to go home, that the defendant knew nothing more until the police arrived at his door an hour or so later, and that his inability to remember what took place at the police station was due to his shock at hearing of Mayes' death or possibly to his having consumed (unbeknownst to him) a drug dissolved in a friend's beer (which he drank in front of Mayes' house) or in coffee given him at the police station.
[3]  "Q I informed you you're under arrest and charged with murder, and before we ask you any questions, you must understand your rights. A Yes. Q I'm going to read from the Miranda warning card, and I want you to answer after each right whether or not you understand it. Do you understand that? A Yes. Q You have a right to remain silent. Do you understand that? A Yes. Q Anything you say can be used against you in court. Do you understand that? A Yes. Q You have the right to talk to a lawyer for advice before we ask you any questions and to have him here with you during questioning. Do you understand that? A Yes. Q If you cannot afford a lawyer, one will be appointed for you before any questioning is started, if you wish. Do you understand that? A Yes. Q If you decide to answer questions now without a lawyer present, you still have the right to stop answering questions at any time until you talk to a lawyer. Do you understand that? A Yes. Q Do you understand everything I have read to you from this card? A Yes. Q Are you willing to talk to me about the case and the incident you're now under arrest for? A Yes." The warnings appear to have been taken from the "Miranda card" the text of which has been treated as adequate in numerous cases, including Commonwealth v. Scott, 355 Mass. 471, 478-479 (1969); Commonwealth v. D'Ambra, 357 Mass. 260, 264-265 (1970); Commonwealth v. Preston, 359 Mass. 368, 372, and n. 2 (1971); and Commonwealth v. Roy, 2 Mass. App. Ct. 14, 17-20 (1974).
[4]  Such circumstances are found in Commonwealth v. Murray, 359 Mass. 541, 543-546 (1971), and in the several cases cited and described in Commonwealth v. Roy, 2 Mass. App. Ct. 14, 19, and n. 2 (1974). They include the defendant's youth, seriously limited mental ability, or mental illness; undue duration of examination; coercive questioning; delay in permitting access to parents, guardians, or others who might assist the defendant; continuation of questioning after defendant has indicated he wishes to stop answering or to contact a lawyer; or the defendant's being under the influence of drugs or alcohol to such a degree as to impair his free will.
[5]  Both parties consider the correctness of the judge's ruling on the basis of the evidence as it stood at the close of the Commonwealth's case, and all the judges on the panel consider it on that basis also. Cf. Commonwealth v. Ferguson, 365 Mass. 1, 10 n. 6 (1974).
