Com. v. Rainwater

Decision Date24 July 1997
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Paul J. McManus, Committee for Public Counsel Services, Worcester, for defendant.

Kennera M. McSherry, Assistant District Attorney, for the Commonwealth.


FRIED, Justice.

The defendant was found guilty at a jury-waived trial on six indictments charging operation of a motor vehicle without the authority of the owner. He moved to suppress statements he had made to the police while being held following his arraignment on another charge, on the ground that these statements violated his State and Federal constitutional rights. The motion was denied and the statements admitted. The defendant appealed and we transferred the case to this court on our own motion. We affirm.


The defendant, nineteen year old Arthur Rainwater, was arrested in Worcester on September 10, 1992, when he attempted to flee from a stolen Toyota Corolla automobile in which he had been a passenger. Later that day, Rainwater was brought to a District Court and arraigned. Counsel was appointed to represent Rainwater, pursuant to his request at the arraignment. Counsel held a brief conversation with Rainwater, informing him that he had a constitutional right to remain silent and instructing him not to talk to anyone else. After the bail hearing, Rainwater was taken to the Worcester County house of correction because he was unable to post bail. 1 Having learned of Rainwater's arrest, Officer James O'Rourke of the Worcester police department's "auto theft squad" telephoned the officers at the house of correction and asked that he be allowed to question Rainwater. O'Rourke had questioned Rainwater on a separate charge the previous year and Rainwater had not shown any reluctance to cooperate on that occasion.

O'Rourke was investigating a rash of thefts in the city, particularly thefts in which the thieves left various taunting messages on the vehicles they had stolen and later abandoned. Several stolen autos were also emblazoned with numbers, apparently signifying the sequence in which they had been stolen. Because Rainwater had been arraigned for the theft of the Toyota earlier that day, O'Rourke knew the defendant was or was likely to be represented by counsel appointed for him at that arraignment. When O'Rourke arrived at the house of correction that evening, Rainwater was brought to meet him in a conference room. O'Rourke proceeded to show him a card on which the standard Miranda warnings were printed and to read these warnings to him as well. Rainwater signed the card. O'Rourke then asked Rainwater about some one hundred unsolved thefts. Rainwater readily acknowledged involvement in several, including the theft for which he had been arraigned that day. After Rainwater made these admissions, O'Rourke asked if he would testify against the other two individuals involved in the thefts, stating that he would bring Rainwater's cooperation to the attention of the district attorney. Rainwater said he would not testify for the prosecution.

The interrogation lasted about one hour. Two or three days later, O'Rourke returned briefly to the house of correction to meet with Rainwater. At this meeting O'Rourke repeated the Miranda warnings and asked Rainwater if he understood them. When Rainwater said he did, O'Rourke showed him a written report of the September 10 interview and asked Rainwater to sign each page, which he proceeded to do. The motion judge found that O'Rourke had not questioned Rainwater about the Toyota theft at the September 10 meeting. That is incorrect. This theft, for which Rainwater had been arraigned, did enter the conversation because O'Rourke's written report of the interrogation lists this theft among the others in which Rainwater admitted involvement. As a result, we agree with Rainwater that the motion judge's subsequent finding that there had been no reference to or discussion of that theft during the interrogation was clearly erroneous, and we consider the case on that basis.

Rainwater pleaded guilty to the September 10 theft of the Toyota. This appeal concerns the string of earlier thefts, to which Rainwater admitted involvement in his oral and written statements to O'Rourke. Rainwater sought to have these statements suppressed prior to his trial on these other charges. At the suppression hearing he asserted a violation of his rights under the Fifth and Sixth Amendments to the United States Constitution and under art. 12 of the Massachusetts Declaration of Rights. That is, Rainwater claimed to have suffered both a violation of the privilege against self-incrimination as implemented by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny; and of the right to counsel as clarified in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The motion judge does not appear to have considered these to be distinct claims, but rather ruled that the statements were admissible, because Rainwater had been clearly apprised of his Miranda rights, had freely consented to questioning, had not requested a lawyer during the questioning, and had made the statements freely and intelligently. These statements were admitted at the jury-waived trial on the charges prior to September 10, including that portion of the statements which described his involvement in the September 10 theft of the Toyota, to which he had already pleaded guilty.

In this appeal Rainwater renews the same constitutional claims he raised earlier. He argues that his request for counsel at the time of arraignment operates as a request for counsel similar to that under the rule in Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981), which held that once an accused has invoked his right to counsel under the Miranda case, there can be no further questioning, unless the accused himself initiates such communication. Rainwater goes on to argue that once the right to counsel attached at his September 10 arraignment, any further questioning out of the presence of counsel violated his Sixth Amendment right to the assistance of counsel. Finally he argues that, even if the Federal Constitution extends this right only to the offense for which proceedings had been formally initiated, this court should adopt a more expansive view of the right to counsel under art. 12.


As to the questioning at issue, the defendant was provided with the standard Miranda warnings at the outset, the questioning was calm and straightforward, and the motion judge's conclusion that the defendant's statement was given freely was entirely warranted. 2 The issue in this case is the propriety of such questioning after a defendant has been arraigned and counsel appointed. The law regarding this aspect of police questioning of persons charged with crime is entirely clear. 3 Once a person has been formally charged, as at an arraignment, the Sixth Amendment right to counsel attaches, Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), and the police may not question a person so charged, who is represented or has sought representation, Michigan v. Jackson, 475 U.S. 625, 632-635, 106 S.Ct. 1404, 1408-1411, 89 L.Ed.2d 631 (1986), without the consent of counsel. This prohibition is "offense specific." McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). In speaking for the Court in the first case to focus on this aspect of the Massiah rule, Maine v. Moulton, 474 U.S. 159, 180 n. 16, 106 S.Ct. 477, 489 n. 16, 88 L.Ed.2d 481 (1985), Justice Brennan stated the rule: "Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses." Nor did this statement stand in isolation. Instead, it is intrinsic to the Court's discussion of the principles and policies that had guided the development of this aspect of the right to counsel, and represented what Moulton, supra at 179-180, 106 S.Ct. at 488-489, described as a sensible solution to a difficult problem:

"The police have an interest in the thorough investigation of crimes for which formal charges have already been filed. They also have an interest in investigating new or additional crimes.... In seeking evidence pertaining to pending charges, however, the Government's investigative powers are limited by the Sixth Amendment rights of the accused.... On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused's right to the assistance of counsel" (emphasis supplied).

The Court revisited this issue in McNeil v. Wisconsin, 501 U.S. 171, 175-176, 111 S.Ct. 2204, 2207-2208, 115 L.Ed.2d 158 (1991), and strongly reaffirmed the principles and conclusions of Moulton. It noted that any departure from the "offense specific" nature of the Sixth Amendment right would have the unacceptable entailment that "most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned " (emphasis in original). Id. at 181, 111 S.Ct. at 2210. 4 The defendant argues...

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