Com. v. Diaz

• Decision Date: 13 March 1996
• Citation: 661 N.E.2d 1326,422 Mass. 269
• Parties: COMMONWEALTH v. Iran DIAZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1326

661 N.E.2d 1326

422 Mass. 269

COMMONWEALTH v. Iran DIAZ.

Supreme Judicial Court of Massachusetts Hampden.

Submitted Dec. 4, 1995.

Decided March 13, 1996.

Michael J. Traft, Boston, for defendant.

Judy Zeprun Kalman, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, O'CONNOR, GREANEY and FRIED, JJ.

WILKINS, Justice.

The defendant was convicted of murder in the first degree of two men and given consecutive terms of life imprisonment without the possibility of parole. He was also convicted of unlawfully carrying a firearm. The evidence indicated that the defendant had sold drugs as part of a drug operation in Holyoke headed by Pedro Ramos and had participated in the killings to avenge wrongs to Ramos or his enterprise thought to have been committed by the victims. The defendant does not challenge the sufficiency of the evidence to warrant his convictions.

The defendant objects to the denial of his motion to suppress statements that he made to the police, the admission of certain evidence, the giving of a joint venture instruction, and the judge's reasonable doubt instruction. He also seeks relief pursuant to G.L. c. 278, § 33E (1994 ed.). We affirm the convictions and decline to order a new trial or to alter the consecutive sentences imposed on the murder convictions.

The evidence warranted a finding that the defendant rode to the scene of the two murders with the two victims and two other men. An eyewitness testified to the defendant's participation in the shootings. The defendant made admissions of guilt and incriminating statements to persons who testified. The defendant also gave a signed statement to the police, which was read to the jury and admitted in evidence, in which he stated that he rode to the site of the shootings with the victims and the two men who, he said, shot the victims. According to his statement, when he asked what he was to do, he was told to act as a lookout for the two men who had the guns. He also stated that he had witnessed the shootings from across the street from where the shootings occurred. That statement, inconsistent with evidence that the defendant was one of the shooters, was sufficient with other evidence, contrary to the defendant's claim, to justify a jury instruction on joint venture and, therefore, jury findings of guilty of murder on the theory of joint venture. We need not discuss this issue further.

1. The defendant challenges the denial of his motion to suppress statements that he made while he was being fingerprinted. On the day of his arrest, the defendant had been given Miranda warnings and had signed an incriminating statement. He remained in the Holyoke police station during the next day, a Sunday. That evening, the police decided to take the defendant's fingerprints and palm prints. Before the prints were taken, the defendant said that he wanted to speak with the detectives. The detectives told him that he could do so after the prints were taken. The defendant was then taken from the cell block to the printing room. While a different detective was taking the defendant's prints, the defendant blurted out, "This is really going to fuck me up." The detective asked, "Why?," and the defendant made a second statement, saying that he had handled one of the guns on the previous day, but that it had jammed. The detective stopped the defendant from saying anything further. In fact, later tests of two guns that the police obtained and matched to bullets and casings found at the crime scene yielded no identifiable fingerprints.

Even if we assume that the effect of the Miranda warnings of the previous day had fully dissipated (the motion judge ruled otherwise), renewed Miranda warnings were not required because the defendant's statements were not the product of a custodial interrogation conducted in violation of rights which Miranda warnings were designed to protect. See Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629-1630, 16 L.Ed.2d 694 (1966) ("Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today"). The first statement was spontaneous and unprovoked. The detective's response, a one word question, seems to have been a natural reflex action (as the judge found) that was invited by the defendant's first statement. Although the second statement was incriminatory, it was volunteered and not the product of improper probing questioning. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989), cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110 L.Ed.2d 276 (1990); United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); 1 W.R. LaFave & J.H. Israel, Criminal Procedure § 6.7(d), at 514-515 (1984). Cf. Commonwealth v. Bryant, 390 Mass. 729, 739, 459 N.E.2d 792 (1984); Commonwealth v. Rubio, 27 Mass.App.Ct. 506, 511-512, 540 N.E.2d 189 (1989).

2. The defendant asserts a far-reaching challenge to the admissibility of all his custodial statements to the police, contending that his statements should have been suppressed because they were not electronically recorded. In 1993, we declined to create a rule requiring electronic recording of custodial interrogations. Commonwealth v. Fryar, 414 Mass. 732, 742 n. 8, 610 N.E.2d 903 (1993). In 1985, the Supreme Court of Alaska had held that "an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process, under the Alaska Constitution, and that any statement thus obtained is generally inadmissible" (footnote omitted). Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985). Since our opinion in the Fryar case, the Supreme Court of Minnesota, acting under its supervisory power, has announced a prospective rule "that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention." State v. Scales, 518 N.W.2d 587, 592 (Minn.1994). A "substantial" violation of the recording requirement requires suppression of the evidence. Id.

The American Law Institute's Model Code of Pre-Arraignment Procedure and the Uniform Rules of Criminal Procedure require the electronic recording of custodial interviews. See Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) ("The regulations relating to sound recordings shall establish procedures to provide a sound recording of ... (c) any questioning of the arrested person and any statement he makes in response thereto"); Unif.R.Crim.P. 243(b), 10 U.L.A. 32 (Master ed. Supp.1992) (as to an individual in custody, "[t]he informing of rights, any waiver thereof, and any questioning must be recorded upon a sound recording device whenever feasible or if questioning occurs at a place of detention").

There is force to a recording requirement particularly if a defendant is being questioned at a police station. The cost of the equipment and its operation is minimal. The machinery is not difficult to use. A recording speaks for itself literally on questions concerning what was said and in what manner. Recording would tend to eliminate certain challenges to the admissibility of defendants' statements and to make easier the resolution of many challenges that are made. Compare Commonwealth v. Hamilton, 411 Mass. 313, 318-319, 582 N.E.2d 929 (1991) (motion judge suppressed tape-recorded statement that showed defendant had not waived his rights) with Commonwealth v. Bousquet, 407 Mass. 854, 862, 556 N.E.2d 37 (1990) (voluntariness of confession corroborated by videotape). Police officials should be alert to the merits of recording custodial interrogations and be warned that the time may come when recording in places of detention, at least, will be mandatory if a statement obtained during custodial interrogation is to be...