Com. v. Harris

Decision Date16 January 1981
Citation415 N.E.2d 216,11 Mass.App.Ct. 165
PartiesCOMMONWEALTH v. David B. HARRIS.
CourtAppeals Court of Massachusetts

Stephen Hrones, Boston, for defendant.

William R. Wilson, Legal Asst. to the Dist. Atty., Boston (Michael J. Traft, Asst. Dist. Atty., with him) for the Commonwealth.

Before HALE, C. J., and GOODMAN and GREANEY, JJ.

GREANEY, Justice.

On August 15, 1975, a Superior Court jury convicted the defendant on indictments charging three counts of rape of a child (G.L. c. 265, § 23), and he was sentenced to concurrent terms at the Massachusetts Correctional Institution at Walpole. No appeal was taken from the judgments of conviction. On August 10, 1977, the defendant filed a writ of error in the Supreme Judicial Court alleging that he had been denied the effective assistance of counsel. That court referred the matter to a special master, and on March 16, 1979, adopted the master's recommendation that the defendant's appellate rights be fully reinstated. On June 27, 1979, the defendant filed a motion for a new trial on the ground of ineffective assistance of counsel. That motion was heard by the trial judge and denied on November 2, 1979. The defendant appeals from errors assigned in connection with the trial and from the denial of the motion for a new trial. These appeals raise the following questions: (1) whether the defendant's warrantless arrest in Chelsea by the Revere police was valid; (2) whether certain incriminating information was obtained from the defendant in violation of his Miranda rights; (3) whether an out-of-court identification made by the victim at the police station should have been suppressed; (4) whether a new trial is required because of alleged prejudicial final argument by the prosecutor; and (5) whether the defendant was effectively represented by his trial counsel. 1 We find no error.

The evidence pertinent to a resolution of the questions may be summarized as follows. The rapes occurred on February 26, 1975. The victim, an eleven year old girl had just completed dancing lessons in Chelsea and was on her way home to Revere. She boarded a bus in front of the dance school at 6:50 P.M. There were approximately six to eight people aboard the bus, including the defendant, who continually stared at the victim. She got off the bus about twenty minutes later and started to walk home. The defendant, who had alighted from the bus at the previous stop, was now following her on the opposite side of the street. She started to walk faster and noticed that the defendant was running toward her. To reach home quickly, she cut through a parking lot and a grassy area, but the defendant caught up to her in the back of the lot, grabbed her and threw her down onto the grassy area. There, he forced her to engage in natural and unnatural acts of sexual intercourse. The entire incident lasted approximately one and one-half hours. She immediately went home, told her father about the incident, and described her assailant as five feet, eleven inches in height, 150 pounds with long brown hair parted in the middle, two to four upper teeth missing, a black left eye which was bloodshot, and wearing brown corduroy slacks and a jacket. Her father called the Revere police, who came to the home, at which time she repeated her description. The victim was then taken to the hospital for an examination and later drew a sketch of her attacker before going to bed.

In the meantime, her father had called his brother-in-law, John Parker, about the incident and given him the description. Parker lived in Chelsea. The father spent the next day searching for the assailant but without success. That night at approximately 11:00 P.M. Parker noticed the defendant waiting for a bus in Chelsea. Upon observing that he met the description, Parker offered the defendant a ride, which the defendant accepted. Parker convinced the defendant to go to Parker's home and invited him in for a beer. There, Parker called the victim's father, who in turn notified the Revere Police. The police quickly picked up the father and proceeded directly to Parker's house in Chelsea. Upon approaching the house, the officers observed the defendant and Parker coming out the front door. Noticing that the defendant fitted the description given by the victim, the officers placed him under arrest and advised him of his Miranda rights. The officers then brought the defendant back to the police station in Revere while the victim's father, Parker, and Parker's wife went to pick up the victim. The victim was told that the police had apprehended the man who fit the description. Unknown to the officers who had arrested the defendant and who were questioning him at the station, the victim and her party arrived and were placed in a room by a stairway. The officers, after completing their questioning, proceeded down the stairway in order to take the defendant back to his cell. The victim, who had left the room to get a drink of water, noticed the defendant coming down the stairs and immediately cried out: "Daddy, that's him over there." This identification was introduced at trial and an in-court identification was made. The defense was based on evidence of alibi.

1. Validity of the arrest. The defendant contends that his warrantless arrest in Chelsea by the Revere police was effectuated without authority, and, as a consequence, that all statements and evidence obtained pursuant thereto should have been excluded at the trial on an application of the fruit of the poisonous tree doctrine. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). See generally, United States v. Crews, 445 U.S. 463, 469-470, 100 S.Ct. 1244, 1249-1250, 63 L.Ed.2d 537 (1980).

In Massachusetts a police officer may make a warrantless arrest of any person who he reasonably believes has committed a felony. Commonwealth v. Holmes, 344 Mass. 524, 525, 183 N.E.2d 279 (1962). The officer's official authority to make such a warrantless arrest, however, is limited to the territorial jurisdiction of his appointment (Report of the Attorney Gen., Pub.Doc.No.12, at 136 (1967); Smith, Criminal Practice and Procedure § 103 (1970)), unless the officer is "on fresh and continued pursuit" of a felon "for any offense committed in his presence within his jurisdiction" (G.L. c. 41, § 98A, inserted by St.1967, c. 263) a situation which has no applicability to this case. Apart from this statutory exception, Massachusetts has yet to determine when a police officer may make a valid warrantless felony arrest outside of his jurisdiction. 2 We now turn to that question.

An extensive line of cases from other states upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a "citizen's arrest" under the same circumstances. State v. McCullar, 110 Ariz. 427, 428, 520 P.2d 299 (1974). People v. Monson, 28 Cal.App.3d 935, 939-940, 105 Cal.Rptr. 92 (1972). State v. Shipman, 370 So.2d 1195, 1196 (Fla.Dist.Ct.App.1979). State v. O'Kelly, 211 N.W.2d 589, 595 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). State v. Shienle, 218 Kan. 637, 640, 545 P.2d 1129 (1976). State v. Jones, 263 La. 164, 174-175, 267 So.2d 559 (1972). Stevenson v. State, 287 Md. 504, 510, 413 A.2d 1340 (1980). People v. Bashans, 80 Mich.App. 702, 713, 265 N.W.2d 170 (1978). State v. Fritz, 490 S.W.2d 30, 32 (Mo.), cert. denied, 411 U.S. 985, 93 S.Ct. 2282, 36 L.Ed.2d 962 (1973). State v. McCarthy, 123 N.J.Super. 513, 517, 303 A.2d 626 (1973). State v. MacDonald, 260 N.W.2d 626, 627 (S.D.1977). State v. Harp, 13 Wash.App. 239, 242, 534 P.2d 842 (1975). To the same effect are several Federal cases. 3 As aptly expressed in State v. O'Kelly, supra at 595: "When the ... officers came to (the adjoining jurisdiction), they ceased to be officers but they did not cease to be persons." In Massachusetts a private person may lawfully arrest someone who has in fact committed a felony. Commonwealth v. Lussier, 333 Mass. 83, 92, 128 N.E.2d 569 (1955). The stricter requirement for a citizen's arrest that the person arrested be shown in fact to have committed a felony is designed to discourage such arrests and to prevent "the dangers of uncontrolled vigilantism and anarchistic actions." Commonwealth v. Klein, 372 Mass. 823, 829, 363 N.E.2d 1313 (1977). Cf. Commonwealth v. Mahnke, 368 Mass. 662, 688-689, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). See also Rohan v. Sawin, 5 Cush. 281, 285 (1851); Commonwealth v. Carey, 12 Cush. 246, 251 (1853); Commonwealth v. Walden, --- Mass. ---, --- n.2 a, 405 N.E.2d 939 (1980); Note, Arrest Without a Warrant in New England, 40 B.U.L.Rev. 58, 76 (1960). Generally, the person arrested must be convicted of a felony before the "in fact committed" element is satisfied and the arrest validated. If the citizen is in error in making the arrest, he may be liable in tort for false arrest or false imprisonment. See Rohan v. Sawin, 5 Cush. at 285; Morley v. Chase, 143 Mass. 396, 398, 9 N.E. 767 (1887); Jacques v. Childs Dining Hall Co., 244 Mass. 438, 440-441, 138 N.E.2d 843 (1923); Pilos v. First Natl. Stores, Inc., 319 Mass. 475, 478, 66 N.Ed.2d 576 (1946).

As a practical matter, the "in fact committed" requirement cannot be met when the propriety of a citizen's arrest is questioned on a motion to suppress 4 because there has been no validating conviction. 5 The obvious purpose of that requirement is to deter private citizens from irresponsible action by exposing them to possible civil liability if it turns out later that the arrested party was innocent. Since the requirement is not designed to frustrate legitimate law enforcement activities, insistence on rigid compliance with the rule would be senseless in the circumstances present here. No one can...

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