Commonwealth v. Fortunato

• Decision Date: 03 October 2013
• Docket Number: SJC–11314.
• Parties: COMMONWEALTH v. Jason FORTUNATO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 500

996 N.E.2d 457

COMMONWEALTH

v.Jason FORTUNATO.

SJC–11314.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 4, 2013.

Decided Oct. 3, 2013.

Warren W. Lee, Assistant District Attorney (Jessica L. Noble, Assistant District Attorney, with him) for the Commonwealth.

John Fennel, Committee for Public Counsel Services, for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

The defendant stands indicted for armed robbery, G.L. c. 265, § 17, and being an habitual offender, G.L. c. 279, § 25. Citing Commonwealth v. Rosario, 422 Mass. 48, 56, 661 N.E.2d 71 (1996)( Rosario ), a Superior Court judge allowed the defendant's motion to suppress the admission of his prearraignment statements that were made more than six hours after arrest. The Commonwealth has appealed pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We conclude that the six-hour rule set out in Rosario, which renders inadmissible statements made by an arrested defendant more than six hours after the arrest, applies to all the defendant's statements at issue in this appeal because all the statements were the product of police questioning to which the Rosario rule applies. We therefore affirm the suppression order, for reasons somewhat different than the judge.

Background. We summarize the facts the Superior Court judge (motion judge) found after an evidentiary hearing at which one police officer testified, supplemented by uncontested facts in the record. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C.,450 Mass. 818, 882 N.E.2d 328 (2008).

On February 19, 2008, a man entered a bank in Reading, stated that he had a gun, and demanded that the bank teller give him money. He fled with a substantial amount of cash, but bank security cameras photographed his image. Detective Michael Saunders of the Reading police department was assigned to investigate the bank robbery. On November 17, 2009, after receiving information that the defendant was a participant in the robbery, Saunders and State Trooper Shawn O'Neil traveled to Albany, New York, and spoke to the defendant, who had been released from a New York prison the previous day and was meeting with his New York parole officer. At that time, Saunders and O'Neil told the defendant that he was a suspect in the Reading bank robbery, administered Miranda warnings, and recorded the interview.¹ The defendant told the officers he would speak to them when he returned to Massachusetts.²

Two days later, on November 19, 2009, Saunders and O'Neil arrested the defendant in Medford at 4:10 p.m. The defendant was transported to the Reading police department, arriving approximately one hour later. The officers did not inform the defendant of his right to a prompt arraignment at any point during or after his arrest. During booking procedures, which occurred at approximately 6 p.m., police read the Miranda warnings to the defendant, who acknowledged in writing that he had received them. Saunders then brought the defendant to an interview room to be questioned and again administered Miranda warnings. The defendant declined to speak to the police, and he was returned to a holding cell in the police station.

At approximately 10:30 p.m., more than six hours after he was arrested, the defendant indicated that he wished to speak to Saunders. Saunders went downstairs to the defendant's cell. When he arrived, Saunders did not say anything to the defendant about the defendant's right to prompt arraignment or, it appears, provide the defendant with any type of prompt arraignment waiver form. Nor did Saunders readvise the defendant of his Miranda rights. Upon Saunders's arrival, the defendant first asked whether the charges against him were final and then, according to Saunders, the following interchange took place, which we set forth in colloquy form:

The defendant: “Hypothetically speaking, aren't tellers trained to hand over the money during a robbery?”

The detective: “Yes, I would believe that tellers are trained to not risk harm to themselves and give the money.”

The defendant: “Well, what would happen if, hypothetically speaking, the person said he did not have a weapon or did not mention a weapon?”

The detective: “The teller stated that you said you had a weapon.”

The defendant: [shakes his head]

The detective: “That's what you get an attorney for, to cross-examine the teller.”

The defendant: “Well, this isn't going to trial, I can plead guilty. I've pled guilty before.” ³

According to his own testimony, Saunders was aware from the outset of this 10:30 p.m. interchange that the defendant wanted to discuss the robbery charge, and Saunders himself considered the interchange to be an “interview.”

The motion judge found that the defendant's statements on November 19, 2009 (November 19 statements), were inadmissible because Rosario established “a bright-line rule giving the police a ‘safe harbor’ period to question a suspect regardless of when court is in session, but not after that,” and although this court had recognized that in “exceptional circumstances,” the rule may be waived or modified, such an exception was limited and did not apply in the present case. The judge did not decide whether, as the Commonwealth argued, the defendant's November 19 statements were spontaneous and unsolicited, because in her view, the Rosario rule applied to bar admission of any and every statement by an arrested defendant if made beyond the rule's six-hour safe harbor period—that is, without distinction as to whether the statement was the product of police interrogation or was instead spontaneous or volunteered.⁴ Accordingly, she allowed the defendant's motion to suppress the November 19 statements.

The Commonwealth applied for leave to prosecute an interlocutory appeal pursuant to Mass. R.Crim. P. 15(a)(2). A single justice allowed the application and referred the case to the Appeals Court. We transferred the case to this court on our own motion. The Commonwealth continues to press its claim, advanced below, that the Rosario rule does not, or in any event, should not apply to preclude admission of the defendant's November 19 statements because they were unsolicited, spontaneous remarks that fall outside of it. The Commonwealth's claim raises an important issue about the scope of the Rosario rule, but we need not consider it in this case because we conclude that the defendant's November 19 statements in their entirety were the product of “police questioning of an arrested person,” Rosario, 422 Mass. at 56, 661 N.E.2d 71, and thus came squarely within the ambit of the rule.

Discussion. The Rosario case establishes a rule that a statement made by a person under arrest, if made within six hours of the arrest, is not subject to suppression because of delay in arraignment, but if the statement is made beyond six hours after the arrest, it will be inadmissible in evidence, absent a valid waiver of the person's right to timely presentment to a court for arraignment. Rosario, 422 Mass. at 56, 661 N.E.2d 71.⁵

The Rosario rule seeks, among other goals, to provide for more effective implementation of a defendant's right to prompt arraignment or presentment ⁶ and the additional rights that prompt presentment protects.⁷ It is a prophylacticrule, see Commonwealth v. Siny Van Tran, 460 Mass. 535, 561, 953 N.E.2d 139 (2011), designed to establish “as clear a rule as possible” in this area, and it applies, at a minimum, to statements made by an arrestee that are the product of police questioning. Rosario, 422 Mass. at 53, 661 N.E.2d 71. To that end, the rule sets out an unambiguous temporal boundary line to demarcate when an arrested defendant's otherwise voluntary statements will be admissible, and when they will not. This court established the Rosario rule because “[p]olice, trial judges, prosecutors, and defense counsel are entitled to as clear a rule as possible concerning both the right of the police to question an arrested person and the standard for suppressing statements made by a defendant after arrest and before arraignment.” Id. Our conclusion that such a rule was necessary stemmed from our recognition that the past rule, which defined the duty to arraign a defendant “as soon as is reasonably possible,” id. at 51, 661 N.E.2d 71, often “involve[d] a measure of uncertainty and the likelihood of uneven application in practice.” Id. at 54, 661 N.E.2d 71. See Commonwealth v. Butler, 423 Mass. 517, 523–524, 668 N.E.2d 832 (1996). In contrast to this somewhat amorphous standard, we saw the bright-line Rosario rule as being able to “(a) largely eliminate debate over the reasonableness of any delay, (b) bar admission of a statement made after the six-hour period unless there is a waiver of prompt arraignment, and (c) apply without regard to when either the court is in session or the arrest was made.” Rosario, supra at 56, 661 N.E.2d 71.

The Commonwealth argues the Rosario rule has no application here because its purpose is to eliminate incentives for police pressure on defendants through questioning, and the defendant's November 19 statements were all spontaneous, unsolicited “remarks,” rather than the product of police interrogation. We disagree with both points. First, as discussed, the rule of prompt arraignment underlying the Rosario rule serves a broader purpose than only protecting against unwarranted police pressure on arrested persons to talk; the rule also is intended to facilitate a criminal defendant's right to counsel, to ensure that a defendant receives a prompt statement by a judge or magistrate of the charges against him, and to prevent unlawful detention. Butler, 423 Mass. at 523, 668 N.E.2d 832. See note 7, supra. Moreover, the Rosario rule itself is designed first and foremost to address the need to give clear, unambiguous guidance to police (among others) concerning their right to question a...