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Commonwealth v. St. Peter2/2/2000
ites us to read the case of Commonwealth v. Diaz, 422 Mass. 269, 271-273 (1996), as requiring the requested instruction. Certain states, notably Alaska (as a matter of State constitutional law) and Minnesota (under its general superintendence power) require that custodial interrogation performed at a police station be electronically recorded. Id. at 272. The Supreme Judicial Court has declined to adopt such a rule. Id. at 273. Commonwealth v. Fryar, 414 Mass. 732, 742 n.8 (1993), S.C., 425 Mass. 237, cert. denied, 522 U.S. 1033 (1997). Counsel is, however, permitted to "argue to a jury and to a judge as fact finder that the failure of the police to record electronically statements made in a place of custody should be considered in deciding the voluntariness of any statement, whether the defendant was properly advised of his rights, and whether any statement attributed to the defendant was made." Commonwealth v. Diaz, supra. While an instruction along these lines would not be error, a judge need not instruct on "every subsidiary fact and possible inference." Commonwealth v. Therrien, 371 Mass. 203, 206 (1976), quoting from Commonwealth v. Greenberg, 339 Mass. 557, 584 (1959). Commonwealth v. Chasson, 383 Mass. 183, 188 (1981). "As long as a judge gives adequate and clear instructions on the applicable law . . . extent of the charge [is a matter] within his discretion." Commonwealth v. Roberts, 378 Mass. 116, 130 (1979). Commonwealth v. Key, 381 Mass. 19, 27 (1980). Commonwealth v. Phong Thu Ly, 19 Mass. App. Ct. 901, 902 (1984). The judge did not abuse his discretion in declining to give an explicit instruction on the jury's ability to consider failure to record electronically the defendant's statement.
Judgments affirmed.
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