Com. v. Alicea

• Decision Date: 03 October 1978
• Citation: 381 N.E.2d 144,376 Mass. 506
• Parties: COMMONWEALTH v. Luis German ALICEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 144

381 N.E.2d 144

376 Mass. 506

COMMONWEALTH v. Luis German ALICEA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 3, 1978.

Decided Oct. 3, 1978.

Lazar Lowinger, Boston, and Manuel Nelson Zapata, N.Y., N.Y., for defendant.

Susan C. Mormino, Asst. Dist. Atty., Michael J. McHugh, Legal Asst. to the Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

Between late afternoon of May 10, 1975, and sometime after midnight of May 11, a number of incidents, with some attendant violence, occurred at the Julian Steele Housing Project in Lowell pitting "Puerto Rican" against "American" residents or adherents. ¹ About 12:30 A.M., or later, a young woman, seventeen-year old Sylvia Cormier, standing outside 92-94 Shaughnessy Terrace, part of building 3 of the project, was killed by a bullet to the head fired from a .22 caliber gun. The defendant Alicea was indicted for the murder of Cormier and also for possession of a firearm without license and for unlawfully discharging a firearm within the city limits of Lowell. He was found guilty by a Middlesex jury of murder in the second degree and of the other two offenses. ² Appealing from the judgments of conviction to this court pursuant to G.L. c. 278, §§ 33A-33G, the defendant contends that the trial judge committed errors in refusing to suppress his statements to the police and an identification and other evidence, and in denying his motions for directed verdicts of acquittal for failure of proof. Miscellaneous other errors are also claimed and will be considered.

1. Motion to suppress. We accept (and here restate and elaborate somewhat upon) the facts as found by the judge on the defendant's motion to suppress, heard at voir dire before trial. The defendant with two other men was brought to the main room of the criminal bureau at the Lowell police station about 1:25 A.M., May 11. A radio transmission had informed Inspectors Peter Gickas and John Sullivan, on duty in the station at that time, that a shooting had taken place at the project and that three possible witnesses would be arriving. Gickas approached the defendant ³ and, before any material exchange, read him the usual Miranda warnings, but as the defendant responded with an equivocal gesture to the question whether he understood English, Gickas attempted to sound the words from a card in Spanish. Shortly he abandoned the effort and telephoned an interpreter, Efrain Rivera. Seeing the interpreter enter the place some minutes later, the defendant said in Spanish, "I'm in a lot of trouble," but further conversation was stopped when Gickas directed the interpreter to get on with the Miranda warnings. The interpreter read the Spanish card and emphasized the importance of the choice involved; the defendant said he understood. The interpreter apprehended that the defendant had been drinking, and the defendant later told him he had been drinking heavily; but the defendant was not disabled through intoxication and was carrying on rational discourse. ⁴

To avoid interruption, the defendant, Gickas, and the interpreter moved to the smaller sergeant's room. As the defendant was speaking conversationally of the troubles at the project, ⁵ Inspector Sullivan entered and said, in effect, that there were some people on hand who could identify the man who shot Sylvia Cormier; ⁶ did the defendant want to meet them? The defendant said, "Let's go," or the equivalent, and the group walked to the guard room. As they entered, with the defendant somewhat in the lead, one of those present in the room, Raymond Saab, spoke up and identified the defendant as the one who shot the victim. ⁷ It was about 2 A.M.

The group retreated to the hallway outside the guard room. Now, said Sullivan, the matter was serious and the defendant could and would be charged with assault with a dangerous weapon and firearm violations; ⁸ he could help the police and himself by producing the weapon and telling his story. The defendant said he had fired a gun into the air. Sullivan said there was a test by which it could be determined whether an individual had fired a weapon recently. ⁹ The defendant then said he had fired into a crowd two or three times and seen someone go down. Would he be willing to take the police to the gun? The defendant agreed.

A party including the defendant, Gickas, and the interpreter proceeded by car to the area, roughly where Murray Terrace and Chippewa Street meet Shaughnessy Terrace, and a search began in an open field opposite, into which the defendant, so he indicated, had thrown his gun. A fruitless scramble followed for some forty-five minutes through the field under flashlights and other illumination. Gickas accused the defendant of lying, and the defendant avowed that after firing the gun he had driven with another man to a place by railroad tracks and the gun had been buried there. ¹⁰

The party then moved out to find the location, but stopped first at 81 Chippewa Street. Word had been communicated to Gickas by other police investigating the crime that the defendant had worn earlier that night a white turtleneck sweater or shirt when he appeared at the police station he was wearing a three-quarter length brown leather coat or jacket and yellow, bell-bottomed, cuffed trousers, but was shirtless. The defendant said the shirt could be found at the house of one of the Curet family nearby at the address mentioned. Gickas entered the house through a rear window the place was locked, no one within and in a bathroom he discovered a white turtleneck which the defendant acknowledged. With guidance from the defendant, the party went on for about two miles and finally stopped at railroad tracks near the loading platform of the Prince macaroni company. With the use of a metal detector, the defendant's .22 caliber revolver (empty of cartridges) was found covered over lightly by stones between railroad ties.

Returned to the sergeant's room at the police station about 6 A.M., the defendant was given his Miranda warnings in Spanish and signed a waiver of rights form in English translated for him orally. ¹¹ He gave a statement rendered by Gickas on a typewriter in English but verified by him after oral translation. The statement started with his friends Roberto and Delores Curet appearing at the defendant's home in Roxbury at 6:30 P.M., May 10. The defendant, taking with him his revolver, went with the two men to Roberto's apartment at the project, arriving about 7 P.M. "About 10 or 11 P.M.," the defendant went to the house of Orlando Curet, a block away at the project. He stayed there ten minutes and returned to Roberto's. Going and coming he was taunted by a group of "white" men with clubs and knives in their hands. A white man fired a rifle twice in the air, whereupon the defendant drew his revolver from his waistband and fired twice in the air. When the defendant told Roberto what had happened, Roberto said the best thing to do was to hide the gun, and he and Roberto drove in Roberto's car to a place near railroad tracks. Roberto buried the gun near the tracks in a pile of stones. They returned to Roberto's house. ¹² Fifteen minutes later, while washing his face after removing his white turtleneck shirt, the defendant heard gunfire. He ran out to the next corner where he saw a girl lying on the sidewalk. He was grabbed at by a white man and a woman, but got away from them and ran back to Roberto's. Roberto said the white people thought the defendant had shot the girl; they had better leave. They got into Roberto's car and drove around for five minutes and returned to the house. The police were there and asked the defendant's name and he was brought to the police station.

On the foregoing evidence brought out in testimony at voir dire by Gickas and Rivera, the sole witnesses, the judge denied the motion to suppress, overruling claims of irregularity in the Miranda warnings, of impropriety in the conditions of the identification, and of unjust coercion of the defendant resulting in an unintelligent waiver of rights on his part (a claim addressed particularly or especially to the admission of the written statement).

In this court the defendant makes the fresh contention ¹³ that he was under illegal arrest, i. e., arrest without probable cause, when he appeared at the police station, and because of this violation the Commonwealth should be barred the use of the evidence subsequently obtained. The case is sought to be analogized to Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the mere giving of Miranda warnings was held not to seal off an antecedent illegal arrest. See Commonwealth v. Haas, --- Mass. ---, --- - --- ^A, 369 N.E.2d 692 (1977). Had the defendant been arrested when he entered the police cruiser or the police station, it would indeed have been an arrest on bare suspicion or less, and not on probable cause. What the consequences of such a violation would be, we need not attempt to say, because we think there was no arrest at that stage. The judge ruled for Miranda Fifth Amendment purposes that the defendant was not in custody until after the identification, and the facts he relied on would support equally well a ruling that arrest a Fourth Amendment question occurred at that point and not before. When Inspector Gickas encountered the defendant he had in mind the content of the radio transmission and regarded him only as a possible witness or as having at most some inchoate connection with the criminal event, and he so treated him. The imparting of Miranda warnings was not tantamount to or suggestive of an arrest (see below). ¹⁴ Probable cause for arrest was supplied by the episode in the guard room followed swiftly by the defendant's statements in the hallway and it was symbolic of the change in the defendant's status that (as testified to at trial) he was placed in handcuffs as the party...