Com. v. Cruz

• Citation: 373 Mass. 676,369 N.E.2d 996
• Decision Date: 17 November 1977
• Court: United States State Supreme Judicial Court of Massachusetts

Page 996

369 N.E.2d 996

373 Mass. 676

COMMONWEALTH v. Israel Gonsalez CRUZ.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 13, 1977.

Decided Nov. 17, 1977.

James A. O'Donovan, Somerville, for defendant.

James W. Sahakian, Asst. Dist. Atty., for Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was tried before a Superior Court jury on indictments charging murder in the first degree, arson, and attempted arson. Before trial, the defendant moved to suppress certain statements made by him at the Lowell police station and to sever the indictment for attempted arson from the other indictments charging arson and murder. After a lengthy voir dire, the judge denied both motions. At the close of the Commonwealth's case, the trial judge allowed a motion for a directed verdict on the attempted arson indictment. On the other charges, the jury returned verdicts of guilty of murder in the second degree and arson.

The defendant appeals under G.L. c. 278, §§ 33A-33G, and argues three assignments of error: ¹ (1) the denial of the defendant's motion to suppress; (2) the denial of the motion to sever; and (3) the admission in evidence of unequivocal denials made by the defendant when questioned by the police. We conclude that there was no error.

We summarize the facts as found by the judge on voir dire. On February 15, 1974, shortly after 8 P.M., a fire occurred at 909 Middlesex Street, Lowell, in a first-floor apartment. An occupant of that apartment, Fernando M. Andrades, died as a result of injuries suffered in the fire. At approximately 10:30 P.M., a second fire occurred in the same building in a second-floor apartment. Shortly thereafter, still another fire of lesser dimensions occurred at 5 Queen Street in an occupied building which was roughly diagonally across the street from the scene of the first two fires.

Several witnesses placed the defendant at the scene of each of these fires. At approximately 8:40 P.M., both Patrolman Upton and Officer Waterhouse of the Lowell police department saw the defendant at the scene of the first fire. Each man spoke to the defendant briefly during the course of their investigations. Subsequently, Officer Waterhouse saw the defendant standing in a crowd of people at the scene of the second fire.

Sometime after the fires at Middlesex Street, the defendant appeared at the second-floor apartment of one Michael Rivera, an occupant of the 5 Queen Street apartment building. The defendant knocked on Rivera's door, inquired about a woman, and left. Moments later, Rivera heard a noise, ran upstairs, and saw a fire in the hallway of the third floor. He then began to look into various rooms in the building. On opening a door to the basement, Rivera saw the defendant sitting in the dark at the top of the stairs. The defendant then went out the front door. Rivera followed, and saw the defendant go into an alley behind the 5 Queen Street building.

Rivera's path intercepted that of Lieutenant Burke, a fireman who earlier that evening had responded to the alarms at Middlesex Street. He saw people coming out of the Queen Street building, and was told by one of the women occupants that someone had been trying to set a fire, and that "(h)e ran into the alley." Rivera also told Burke that the defendant was in the alley, and that he, Rivera, believed that the defendant had set the fire.

When Lieutenant Burke entered the alley to investigate, the defendant announced, "Man, here I am." Burke asked the defendant if he was the one setting the fires. The defendant did not reply. He did, however, comply with Burke's request to go with him to see the fire chief. Burke accompanied the defendant to Middlesex Street, where they met Deputy Fire Chief Murphy and Officer Waterhouse. In the presence of the defendant, Burke told Murphy and Waterhouse that "(t)his is the man I found in the alley. The people in the tenement said he's starting the fires." The defendant then walked with Lieutenant Burke to Officer Upton, who called for a police cruiser.

Officers Waterhouse and Upton testified that at this time the defendant had a strong odor of alcohol on his breath. Nevertheless, the judge found that during this sequence of events and, at all times thereafter, the defendant was able to walk without assistance, that he spoke coherently and intelligibly, and that he was sufficiently sober at all material times to understand what was said to him. The judge further found that at no time was the defendant handcuffed or placed under any physical constraint.

At Officer Upton's suggestion, the defendant and Upton waited in the cruiser until its driver, Sergeant McElroy, returned from investigating the scene. While in the cruiser, the defendant had a conversation in Spanish with his sister and brother-in-law. Shortly thereafter, and on McElroy's return, the defendant was taken to the police station for questioning.

When the defendant arrived at the station at 12:45 A.M. on February 16, 1974, he was advised in English and Spanish of his constitutional rights. A waiver of rights card was read to the defendant in English and Spanish, and he read and signed the two waiver cards at 1:20 A.M. A Spanish speaking officer, Officer Cortes, then told the defendant that he was a suspect in an arson case, and began to question him as to his involvement.

During the first hour of questioning, the defendant and Cortes discussed the defendant's relationship to the victim and discussed the defendant's whereabouts on the evening of the fires. Cortes became suspicious of the defendant's assertion that the victim was his brother, because the names of the parties bore no relationship to each other. Cortes asked the defendant two or three times whether he had set the fires, and, if he had not, whether he had any information to help the police discover who had. The defendant denied lighting any fires, but added at some point in the questioning, "I know, but I'm not going to tell you, I'm going to get him myself." Cortes impressed on the defendant the importance of revealing the identity of that person, and told him that the police would prosecute whoever was responsible. The defendant named one Jesus deJesus. At approximately 2:30 A.M., Cortes began writing in English a statement concerning the defendant's naming of deJesus, which statement was read to the defendant and signed by him at approximately 3 A.M.

Shortly after Cortes wrote the statement, deJesus arrived at the station. He responded to questions concerning his whereabouts at the time of the fires and asked to see the person claiming that he had set the fires. At approximately 4:15 A.M., the defendant was brought into the presence of deJesus. On seeing deJesus, the defendant stated that deJesus was not the one he saw lighting the fires.

After deJesus left the station, the defendant asked for the first time whether he could go home. Cortes told the defendant he could not go home, and that he wanted the truth about the fires. Shortly thereafter, the defendant told Cortes that he had attempted to light a fire at 5 Queen Street, but denied lighting the others. About fifteen minutes later, at approximately 4:45 A.M., the defendant confessed to lighting the fires on Middlesex Street. Thereafter, the defendant signed a statement prepared and read to him by Cortes, and was placed under arrest.

1. The defendant advances three arguments to support the contention that his statements made at the police station should have been suppressed. The first argument, based on the Fourth Amendment to the United States Constitution, contests the judge's conclusions that (1) the defendant's presence at the police station was voluntary; and that (2) as a result, the defendant was not legally "under arrest" until approximately 4 A.M., when he was informed by Officer Cortes that he was not free to leave. The defendant asserts that he was "in custody" from the time he was taken to the police station, and argues that this detention amounted to an arrest without probable cause.

We conclude that there was no reversible error in the denial of the motion to suppress. As will be seen below, we are unable to agree with the judge's conclusion that the entire period of questioning at the police station was voluntary, and thus noncustodial in nature. Although we now decide that the defendant was in custody after the first hour of questioning, we conclude, on two alternative grounds, that his detention at the police station comported with requirements of the Fourth Amendment. First, the circumstances in this case clearly warrant the conclusion that the defendant was detained with probable cause, on facts known to the police at the time the defendant entered the police cruiser. Second, assuming arguendo that no probable cause existed precisely at that time, we find that the defendant accompanied the police officers to the station voluntarily, and then, while under no restraint or compulsion, made statements which, when combined with the circumstances surrounding his discovery in the alley, gave the police probable cause to detain him for further questioning. See Commonwealth v. Daniels, 366 Mass. 601, 610, 321 N.E.2d 822 (1975).

On the issue of the defendant's status during the four-hour questioning at the police station, we find ample evidence in the record to warrant the conclusion that the defendant complied voluntarily with initial requests to answer questions at the police station. ² The defendant was not apprehended and forcibly taken into custody; rather, he announced his presence to Lieutenant Burke on his own accord, and then freely accompanied him to the police officers on duty. There is also sufficient evidence in the record to warrant a finding that the defendant consented to enter the police cruiser and to go to the station for questioning. ³ The record shows that throughout this sequence of events, the...