Com. v. Fredette

• Decision Date: 31 December 1985
• Citation: 486 N.E.2d 1112,396 Mass. 455
• Parties: COMMONWEALTH v. Robert J. FREDETTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1112

486 N.E.2d 1112

396 Mass. 455

COMMONWEALTH v. Robert J. FREDETTE.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Oct. 9, 1985.

Decided Dec. 31, 1985.

Eric Brandt, Committee for Public Counsel Services, Jamaica Plain, for defendant.

Robert H. Scarino, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant appeals his convictions by a Superior Court jury for breaking and entering a dwelling house in the nighttime, rape, unnatural rape, and assault and battery by means of a dangerous weapon. On appeal, the defendant argues that the admission of certain fingerprint evidence was error and that he did not receive effective assistance of counsel because his trial counsel failed to object to the prosecutor's questioning of witnesses and because trial counsel did not renew objections to the admission of the challenged fingerprint evidence after previously unknown facts came to light at trial. We transferred the case here on our own motion and now affirm the convictions.

Shortly after 1 A.M. on April 17, 1980, an assailant broke into the Newburyport apartment of the thirty year old female victim, held her captive at knifepoint for approximately one and one-half hours, during which time he repeatedly raped her. Newburyport police officers drove the victim to the hospital. On the way to the hospital, the victim noticed a green station wagon parked in the lot in front of her apartment. She told the police that the car was often parked in the lot and that the assailant had asked her permission to park in her parking space prior to breaking down her apartment door. At approximately 5:30 A.M., Officer Patrick Marsh interviewed the victim at the hospital where she was being treated for her injuries. The victim identified the defendant as her assailant after reviewing an array of 132 photographs. ¹ Shortly after the victim identified her assailant, police officers investigating the incident informed Officer Marsh that they had ascertained that the green station wagon parked near the victim's apartment was registered to the defendant. ² At 6 A.M. Officer Marsh and three other officers began looking for the defendant at an apartment located across the street from the victim's apartment. The apartment was leased to the defendant's girl friend and the police knew from past experience with the defendant that he had been living at that address. In addition, the defendant's car registration listed the girl friend's apartment as his address.

The police knocked loudly on the apartment door but there was no answer. A neighbor informed the police that she had heard two people, whom she assumed to be the defendant and his girl friend, walk up the stairs and enter the apartment at 2:30 A.M. She also told the police that the defendant usually left for work at 6 A.M but that she had not heard him leave that morning.

Officer Marsh left to consult with his supervisor at the Newburyport police station while the three other officers remained stationed in front of the defendant's apartment door. The supervisor telephoned the clerk/magistrate of the Newburyport District Court, Arthur B. Smith, at his home and asked him to come to the courthouse to issue an arrest warrant for the defendant. Smith agreed that probable cause existed to make the arrest. He stated that the police could assume that an arrest warrant was in effect from that point forward and that he would issue a written warrant when he arrived at work that morning. ³

At approximately 7:10 A.M., Officer Marsh went to the defendant's place of work. On learning that the defendant was not at work, Officer Marsh rejoined the other officers at the apartment where the defendant was living. The officers knocked on the door of the apartment at 7:30 A.M., shouting that they had a warrant for his arrest. When they received no answer, the police entered the apartment forcibly.

The defendant was arrested in the apartment. Two sets of fingerprints were taken at the Newburyport police station. Following his arraignment, a third set of fingerprints was taken. Subsequently, the defendant was indicted and arraigned at the Superior Court in Salem for the crimes of which he ultimately was convicted.

Acting on the defendant's motion to suppress all evidence obtained as a result of his arrest, the trial judge ruled (we think correctly) that the defendant's arrest was unlawful because no valid warrant was obtained and the arrest was made in the defendant's home under nonexigent circumstances. See, e.g., Commonwealth v. Pietrass, 392 Mass. 892, 897-900, 467 N.E.2d 1368 (1984); Commonwealth v. Forde, 367 Mass. 798, 801-803, 329 N.E.2d 717 (1975). Consequently, the judge suppressed all physical evidence seized pursuant to the unlawful arrest, including the three sets of fingerprints taken on the day of his arrest.

On September 17, the Commonwealth filed a motion for production of fingerprints to compare the fingerprints with latent prints recovered from a bottle of vegetable oil handled by the assailant while in the victim's apartment. The judge allowed the motion, ruling that taking the new set of prints would not violate the defendant's Fourth and Fifth Amendment rights under the United States Constitution.

1. First, we address the defendant's challenge to the trial judge's order allowing the Commonwealth to obtain fingerprints after the defendant had been indicted. The defendant asserts that admission of this evidence violated his rights under the Fourth Amendment to the United States Constitution. In cases like the one presented, where the defendant seeks to suppress information obtained after unlawful police conduct, the issue is whether the evidence challenged has been obtained by exploiting the illegality or by means sufficiently distinguishable to dissipate the taint. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Commonwealth v. Frodyma, 393 Mass. 438, 441, 471 N.E.2d 1298 (1984). Commonwealth v. Benoit, 382 Mass. 210, 216, 415 N.E.2d 818 (1981). Commonwealth v. Haas, 373 Mass. 545, 551, 369 N.E.2d 692 (1977). See United States v. Crews, 445 U.S. 463, 476, 100 S.Ct. 1244, 1252, 63 L.Ed.2d 537 (1980). The Commonwealth bears the burden of proving that evidence subsequently obtained is untainted. Commonwealth v. Cote, 386 Mass. 354, 362, 435 N.E.2d 1047 (1982).

Even though the Commonwealth bears a heavy burden, "[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews, supra, 445 U.S. at 474, 100 S.Ct. at 1251. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975). Evidence obtained subsequent to unlawful police conduct does not automatically become sacred and inaccessible. Commonwealth v. Frodyma, 393 Mass. 438, 441, 471 N.E.2d 1298 (1984), quoting Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984), cert. denied, 471 U.S. 1138, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985), and quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920). An unlawful detention cannot deprive the government of the opportunity to prove guilt through the introduction of evidence wholly untainted by police misconduct. United States v. Crews, supra.

The United States Supreme Court has determined that evidence need not be excluded under the fruit of the poisonous tree doctrine established in Wong Sun v. United States, supra, if the government obtained the evidence through an independent source, Silverthorne v. United States, supra, if the connection between the improper conduct and the derivative evidence has become so attenuated as to dissipate the taint, Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268 (1939), or if the government can demonstrate that the evidence inevitably would have been discovered by lawful means, Nix v. Williams, supra 104 S.Ct. at 2509. See Commonwealth v. Benoit, supra 382 Mass. at 215-218, 415 N.E.2d 818 (discussing exceptions to the fruit of the poisonous tree doctrine and declining to apply the inevitable discovery exception). See also Commonwealth v. Frodyma, supra 393 Mass. at 440, 471 N.E.2d 1298 (applying the independent source exception); Commonwealth v. Glavin, 354 Mass. 69, 72, 235 N.E.2d 547 (1968) (applying the "connection so attenuated as to dissipate the taint" exception). Because we conclude here that the connection between the unlawful police conduct and the evidence the defendant seeks to have suppressed is so attenuated as to dissipate the taint, we need not discuss the application of the independent source and inevitable discovery exceptions to the facts of the case.

In determining whether the connection between the evidence and the improper conduct has become so attenuated as to dissipate the taint, the facts of each case must be examined in light of three factors: the temporal proximity of the arrest to the obtaining of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the misconduct. Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 2261-2262, 45 L.Ed.2d 416 (1975). Commonwealth v. Bradshaw, 385 Mass. 244, 258, 431 N.E.2d 880 (1982). Here, more than five months elapsed between the date of the defendant's arrest and the date of the order to produce fingerprints, making suppression on the basis of proximity in time unwarranted. Suppression has not been ordered when shorter intervals elapsed between the unlawful arrest and the obtaining of evidence. See, e.g., Wong Sun v. United States, supra, 371 U.S. at 491, 83 S.Ct. at 419; United States v. Jarvis, 560 F.2d 494, 498 (2d Cir.1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1511, 55 L.Ed.2d 532 (1978); Commonwealth v. Haas, supra 373 Mass. at 556, 369 N.E.2d 692; Commonwealth v. Fielding, 371 Mass. 97, 100, 114, 353...