Com. v. Rosario

• Decision Date: 12 February 1996
• Citation: 422 Mass. 48,661 N.E.2d 71
• Parties: COMMONWEALTH v. Hipolito ROSARIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 71

661 N.E.2d 71

422 Mass. 48

COMMONWEALTH v. Hipolito ROSARIO.

Supreme Judicial Court of Massachusetts Hampden.

Argued Nov. 7, 1995.

Decided Feb. 12, 1996.

INDICTMENTS found and returned in the Superior Court Department on September 2, 1993.

A pretrial motion to suppress evidence was heard by John F. Moriarty, J.

Following allowance of the Commonwealth's application for an interlocutory appeal in the Supreme Judicial Court for the county of Suffolk by Abrams, J., the case was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.

Regina Zupan, Committee for Public Counsel Services, for defendant.

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

WILKINS, Justice.

We consider whether the defendant's confessions should be suppressed because, following his arrest, the police delayed his arraignment until after questioning that led to his confessions. The defendant has been charged in six indictments for breaking and entering in the nighttime and in six indictments for larceny.

A Superior Court judge suppressed the defendant's confessions to various 1993 burglaries in Springfield principally because, after the defendant's arrest, the police deliberately delayed the defendant's arraignment for the purpose of obtaining incriminating statements from him. A single justice of this court allowed the Commonwealth's application for leave to take an interlocutory appeal. In an unpublished opinion, the Appeals Court affirmed the order allowing the defendant's motion to suppress. See 38 Mass.App.Ct. 1104, 645 N.E.2d 1192 (1995). We granted the Commonwealth's application for further appellate review.

In August, 1993, officers assigned to the Springfield police department's burglary squad were investigating a series of burglaries that had been committed in the Forest Park section of that city. They obtained the nickname and a description of the person who had apparently committed one of the burglaries. A man meeting that description fled when a police officer sought to question him. Later, on August 25, the police saw the man again, and once again, he declined to stop for questioning and fled. This time, however, after a long pursuit, the police apprehended him between 2:30 P.M. and 3 P.M. He told the police that his name was Hector Gonzalez. A check at the police station disclosed that there were warrants outstanding for Hector Gonzalez for assault and battery and for assault and battery by means of a dangerous weapon. The defendant was arrested on the warrants and brought to the detective bureau where he was questioned as to his true identity. He was not advised of his right to use a telephone until about 5 P.M. ¹ He was booked about 5 P.M. and finally admitted that his name was Hipolito Rosario and that he used the name Hector Gonzalez as an alias. The defendant was held overnight and interviewed in the morning in the detective bureau, commencing about 9:15 A.M. He was given Miranda warnings. The judge ruled that the defendant fully understood the Miranda warnings and voluntarily and intelligently waived his Miranda rights. The judge also ruled that the defendant's statements were voluntary and not the product of threats or coercion and were the product of a rational intellect.

Although the defendant initially denied that he had committed any burglaries, he later admitted that he had committed several. He agreed to go with the police to point out the residences that he had burglarized. He identified about six houses, all but one of which were listed in police records of places of reported burglaries. As to the exception, inquiry of the occupant disclosed that she had not reported the burglary. The police returned the defendant to the police station where, at 11:55 A.M., an officer began typing a statement which the defendant signed. The defendant was brought to court on the outstanding warrants in the afternoon.

The judge assumed that, even with prompt booking on the previous day, there would not have been time to arraign the defendant that day. On the other hand, the judge found that at 9 A.M. on the next day, the defendant could have been presented to the court from which the warrants had been issued.

The motion judge ruled that the police had violated Mass.R.Crim.P. 7(a)(1), as amended, 397 Mass. 1226 (1986), because on August 26, the second day, they brought the defendant to the detective bureau for questioning instead of taking him to court. "I find the conclusion inescapable that [the officers] deliberately delayed presenting the defendant at the appropriate court in the hope that they could entice from him a confession of his responsibility for the series of burglaries that had been plaguing the Forest Park section of the city." They knew, the judge said, that counsel would be appointed to represent the defendant at arraignment and thereafter the opportunity to obtain a statement would be greatly diminished. The motion judge allowed the defendant's motion to suppress his oral and written statements, largely on the basis of the violation of Mass.R.Crim.P. 7(a)(1). See note 1 above.

The Appeals Court affirmed. It concluded that the error concerning the violation of the defendant's right to use a telephone (G.L. c. 276, § 33A [1994 ed.] ) was not significant because the incriminating statements were made after the defendant was advised of his right to use a telephone. The Appeals Court further concluded, however, that the delay had been "calculated to obtain an inculpatory statement before the defendant could consult with appointed counsel." The Appeals Court emphasized that there had been deliberate interference with the right to counsel, "egregious misconduct which is to be discouraged by strong prophylactic measures," citing Commonwealth v. Manning, 373 Mass. 438, 443-445, 367 N.E.2d 635 (1977). The motion judge, however, did not base his ruling on the denial of any constitutional right to counsel, and the defendant has made no such argument. The defendant argues only that the deliberate police delay in arraignment violated Mass.R.Crim.P. 7(a)(1) and requires suppression.

Rule 7(a)(1) of the Massachusetts Rules of Criminal Procedure provides that "[a] defendant who has been arrested shall be brought before a court if then in session, and if not, at its next session." The rule makes no distinction between a person who has been arrested pursuant to a warrant and one arrested without a warrant. The rule does not state when, during the respective sessions, an arrested defendant must be brought before a court, nor does the rule specify any consequence of noncompliance. We have said that rule 7(a)(1) is essentially a codification of Massachusetts case law. See Commonwealth v. Hodgkins, 401 Mass. 871, 876, 520 N.E.2d 145 (1988).

The police have long had the duty to bring an arrested person before a court as soon as is reasonably possible. See Keefe v. Hart, 213 Mass. 476, 482, 100 N.E. 558 (1913); Tubbs v. Tukey, 3 Cush. 438, 440 (1849). The purpose of the rule is to prevent unlawful detention and to eliminate the opportunity and incentive for application of improper police pressure. See Commonwealth v. Perito, 417 Mass. 674, 680, 632 N.E.2d 1190 (1994), citing Commonwealth v. Cote, 386 Mass. 354, 361 n. 11, 435 N.E.2d 1047 (1982). The reasonableness of any delay is to be determined by the circumstances. See Commonwealth v. Perito, supra at 680, 632 N.E.2d 1190; Commonwealth v. Hodgkins, supra at 876-877, 520 N.E.2d 145. We have accepted rulings that an arrest made after court closed for the day, followed by an arraignment on the next day, did not involve unreasonable delay and that a confession otherwise properly obtained in the interim need not be suppressed. See Commonwealth v. Dubois, 353 Mass. 223, 226, 230 N.E.2d 906 (1967); Commonwealth v. DiStasio, 294 Mass. 273, 284, 1 N.E.2d 189 (1936). We have also accepted a trial judge's conclusion that delay was not unreasonable when a defendant was arrested on Sunday night and not presented to court until the next Wednesday. Commonwealth v. Banuchi, 335 Mass. 649, 656, 141 N.E.2d 835 (1957). In the Banuchi opinion, the court tolerated delay caused in part by the recording of the defendant's confession and the investigation of the defendant's "various stories." Id. at 657, 141 N.E.2d 835. We are not aware of any reported Massachusetts opinion in which a statement was suppressed because of unreasonable delay in arraigning a defendant.

This court has attempted to identify factors that should guide the determination of the reasonableness of any delay in arraigning a person who has been arrested. We have suggested that the same factors that should be used in determining the admissibility of a confession made following an illegal arrest should be considered in cases involving delayed arraignment. See Commonwealth v. Sylvia, 380 Mass. 180, 183-184, 402 N.E.2d 489 (1980), citing Commonwealth v. Fielding, 371 Mass. 97, 113-114, 353 N.E.2d 719 (1976). These factors are (1) whether Miranda warnings were given; (2) the circumstances, including the passage of time between the illegal arrest and the confession; and (3) the purpose and flagrancy of the official misconduct. ² Id. In the case before us the police gave Miranda warnings; the defendant's confession was made freely, intelligently, and voluntarily; and he agreed to drive around the Forest Park section of Springfield to identify houses that he had burglarized. Apart from the intentional delay itself, there appears to have been no arguably official misconduct.

What happened in this case is not significantly different from what happens in any case in which police do not take a defendant to be arraigned at the earliest feasible moment, but rather, after giving Miranda warnings, interrogate the...