Commonwealth v. Fortunato , 466 Mass. 500 ( 2013 )

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 (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 (2007), S.C., 450 Mass. 818 (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, and thus came squarely within the ambit of the rale.

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 56.⁵ 6

The Rosario rule seeks, among other goals, to provide for more effective implementation of a defendant’s right to prompt arraignment or presentment⁶ and the additional rights that prompt presentment protects.⁷ It is a prophylactic rule, see Commonwealth v. Siny Van Tran, 460 Mass. 535, 561 (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. 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 “[pjolice, 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, often “involve[dj a measure of uncertainty and the likelihood of uneven application in practice.” Id. at 54. See Commonwealth v. Butler, 423 Mass. 517, 523-524 (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.

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. 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 defendant under arrest as well as the standards for suppressing statements made by such defendants. Rosario, 422 Mass. at 53.

Second, with respect to the defendant’s November 19 statements, it is necessary that they be viewed in the context in which they were made, and while keeping in mind that the purposes of the Rosario rule are best served by taking a realistic view of what constitutes police questioning. On November 19, 2009, as of 10:30 p.m., the defendant (1) had been arrested and taken into custody over six hours earlier, (2) had been interrogated, albeit unsuccessfully, by Detective Saunders approximately four hours earlier;⁸ (3) remained in the custody of the same police department in the same police station without arraignment or indeed any intervening event; and (4) was asking to speak again specifically to Saunders, the same interrogating detective. Additionally, Detective Saunders was “immediately aware” at the outset of the 10:30 p.m. interchange that the defendant wanted to discuss the robbery charge, and considered the interchange to be an “interview.” Considering all these facts together, it is clear that the entire 10:30 p.m. conversation between the defendant and Saunders was an integral part of a single episode of police questioning, and subject to the six-hour time limitation imposed by the Rosario rule.⁹

In support of its opposing view, the Commonwealth cites Federal statutory and decisional law, and argues that these authorities support the position that the 10:30 p.m. interchange between the detective and the defendant on November 19, 2008, did not fall within the scope of “police questioning,” but rather represented a series of unsolicited, volunteered remarks by the defendant to which Rosario has no application. In particular, the Commonwealth points to 18 U.S.C. § 3501 (2006), which was enacted by Congress in 1968 in relevant part to limit what is known as the McNabb-Mallory rule,¹⁰ that made inadmissible in Federal cases a confession of an arrested and detained defendant if it is made while the defendant is being detained for an unreasonable period of time before being brought before a magistrate, in violation of the prompt arraignment requirement of Fed. R. Crim. P. 5(a)(1)(A). See Corley v. United States, 556 U.S. 303, 322 (2009). See also Rosario, 422 Mass. at 55 (discussing McNabb-Mallory rule and § 3501). Section 3501(c) establishes a flexible presumption that a prearraignment statement by an arrested and detained defendant made more than six hours after arrest will not be admissible, but § 3501(d) provides in part that the otherwise generally applicable six-hour Hmitation in § 3501 will not prohibit the admission in evidence “of any confession made or given voluntarily by any person to any other person without interrogation by anyone.” The Commonwealth references two decisions in which the United States Court of Appeals for the Second Circuit has interpreted § 3501(d) to mean that if a defendant’s postarrest but prearraignment statements were spontaneous and not the product of “interrogation or its functional equivalent,” see Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980),¹¹ then even unreasonable delay in bringing the defendant before a magistrate for arraignment would not result in suppression of the statements. See United States v Fullwood, 86 F.3d 27, 31 (2d Cir.), cert. denied sub nom. Poindexter v. United States, 519 U.S. 985 (1996) (Fullwood); United States v. Colon, 835 F.2d 27, 31 (2d Cir. 1987), cert. denied, 485 U.S. 980 (1988) (Colon). In the Commonwealth’s view, the defendant’s November 19 statements, in terms of being unsolicited and volunteered, are similar to those at issue in these two Second Circuit cases. We are not persuaded. Quite apart from the fact that the Massachusetts Legislature has not enacted any statute comparable to § 3501(d) in an effort to limit or modify our Rosario rule, the factual circumstances presented in the Federal decisions on which the Commonwealth relies are very different from this case. See Colon, 835 F.2d at 29, 30-31.¹² See also Fullwood, 86 F.3d at 30-31.¹³

In summary, we hold that the defendant’s November 19 statements were made as part of a continuing episode of “police questioning” within the meaning of Rosario, 422 Mass. at 56, and therefore are subject to the Rosario rule. Because the statements were made more than six hours after the defendant’s arrest, and because the Reading police did not seek or obtain a waiver by the defendant of his right to prompt arraignment,¹⁴ the motion judge correctly ordered the suppression of the November 19 statements in their entirety. We do not need to, and do not, consider in this case whether the Rosario rule applies to a defendant’s unsolicited or volunteered statements (i.e., those that are not the product of police questioning) made more than six hours after he has been arrested. That issue is left for another day.

Conclusion. The order allowing the defendant’s motion to suppress his November 19, 2009, statements is affirmed. The case is remanded to the Superior Court for further proceedings.

So ordered.

1 While showing the defendant a photograph taken by a security camera in the Reading bank as well as photographs taken during two other bank robberies, Detective Michael Saunders and Trooper Shawn O’Neil told the defendant that they thought he had robbed all three banks.

2 The defendant’s motion sought to suppress these November 17, 2009, statements made to the police in New York as well as the statements he made on November 19 while being held in custody at the Reading police station. The Superior Court judge who heard the defendant’s suppression motion (motion judge) denied it with respect to the November 17 statements. The defendant apparently did not appeal from that denial.

3 The judge interpreted this statement to mean “he would plead out before trial, having previously pled out to crimes he did not commit.”

4 The defendant did not argue, and the judge did not consider whether the defendant’s statements were voluntary under Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda).

5 This court in Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996) (Rosario), stated the rule as follows:

“We adopt for the future, with respect to police questioning of an arrested person, a rule similar to those in the Federal and the Pennsylvania systems discussed above. An otherwise admissible statement is not to be excluded on the ground of unreasonable delay in arraignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the defendant made an informed and voluntary written or recorded waiver of his right to be arraigned without unreasonable delay. This rule will (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 made. . . . We will depend on the requirements of Miranda warnings, voluntariness, and the requirements of G. L. c. 276, § 33A [right to telephone call], to protect against unfair or coercive questioning during the six hours after arrest. The six-hour period itself will place an outside limit on any incentive to question an unwilling arrestee. If, when arrested, the person is incapacitated because of a self-induced disability . . . [or] for reasons not attributable to the police, such as a natural disaster or emergency, interrogation during the six-hour period is not possible or must be suspended, the six-hour period should be tolled appropriately. It is most important to recognize that, but for the exceptions just noted, the period of safe harbor questioning commences on arrest and concludes six hours later without regard to when court is in session.”

6 The right to prompt arraignment is codified in Mass. R. Crim. P. 7 (a) (1), as amended, 461 Mass. 1501 (2012), which provides in relevant part: “A defendant who has been arrested and is not released shall be brought for arraignment before a court if then in session, and if not, at its next session.”

7 This court has described these rights as follows:

“[T]he rule of prompt presentment is designed to facilitate the defendant’s right to counsel, provide the defendant with a recitation of the charges against him by a member of the judiciary, and ensure that the defendant’s detention is not unlawful. ... In a less direct manner, the rule, recognizing the coercive nature of a lengthy interrogation, provides the court with an additional assurance (over and above the assurance supplied by compliance with the requirements of Miranda, [384 U.S. 436]) that statements made by the defendant after arrest but before presentment are free, intelligent, and voluntary.”

Commonwealth v. Butler, 423 Mass. 517, 523 (1996).

8 The attempt by Saunders to interview the defendant after he was booked on November 19, 2009, was a sequel to Saunders’s first unsuccessful effort to question the defendant in New York on November 17.

9 Contrary to the view of the dissent, see post at 512-513, we do not suggest here that the definition of what constitutes “police questioning” is different under Rosario than it is under Miranda, 384 U.S. at 444. But in evaluating an interchange between a defendant and the police, the context, and more particularly the purpose, of the inquiry is important. In this case, the inquiry’s purpose is not, as it was in Rhode Island v. Innis, 446 U.S. 291, 301 (1980), to determine whether the defendant’s Miranda rights were honored or whether in any event his statements were voluntarily made; as Rosario makes clear, that is a separate question. Rosario, 422 Mass. at 53, 56. Rather, the purpose is to determine whether the police questioning implicates the broad prophylactic rule established in Rosario to actualize the right to prompt arraignment — a separate right that has several purposes, see note 7, supra, but also had a history of inconsistent enforcement. See Butler, 423 Mass. at 523-524; Rosario, supra at 53-54.

10 See Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, 318 U.S. 332 (1943).

11 Rhode Island v. Innis, 446 U.S. at 301, defines “interrogation or its functional equivalent” to mean express questioning by the police as well as “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

12 In United States v. Colon, 835 F.2d 27, 29 (2d Cir. 1987), cert. denied, 485 U.S. 980 (1988) (Colon), the defendant was charged with the theft of American Express traveler’s checks under a Federal criminal statute. He was arrested and taken into custody on a Saturday morning, but not arraigned until the following Monday morning. Id. Driving to the courthouse on Monday morning, the defendant initiated conversation in Spanish with an American Express investigator who was accompanying the police, and in the conversation, the defendant made inculpatory statements about the charged crime. Id. The court held that the defendant’s statements were “made . . . voluntarily . . . without interrogation” within the meaning of 18 U.S.C. § 3501(d) (2006), and thus were not subject to suppression under the presumptive six-hour rule in 18 U.S.C. § 3501(c) (2006) because of the delay in arraignment. Colon, supra at 30-31.

13 In United States v. Fullwood, 86 F.3d 27, 29 (2d Cir.), cert. denied sub nom. Poindexter v. United States, 519 U.S. 985 (1996) (Fullwood), the defendant was arrested on a Federal charge and taken into custody but not arraigned until two days later. While in custody, the defendant asked to speak to State police officers, and did so. Id. During his interview with the State officers, the defendant made inculpatory statements about the Federal crime. The court held that the defendant’s statements fit within 18 U.S.C. § 3501(d), because they were voluntarily made and “were not the product of interrogation in the sense that they were solicited from an unwilling participant” (emphasis added), and therefore 18 U.S.C. § 3501(c)’s presumptive rule of suppression

when arraignment occurs more than six hours after arrest was not triggered. Id. at 31-32.

The facts of the Fullwood case seem closer to the facts of this case than do those of the Colon case in the sense that, as here, the defendant in Fullwood asked to speak to the police. However, we do not agree with the court’s apparent view in Fullwood that a defendant’s statements are the product of police “interrogation” only when the defendant is unwilling to participate in the interview.

14 At no time — not at booking, during the aborted interrogation around 6 p.m., or when Saunders responded to the defendant’s holding cell at 10:30 p.m. — did the police seek a waiver from the defendant of his right to prompt presentment. There is nothing in the record to suggest that the Reading police, including Detective Saunders when he was asked to go to the defendant’s holding cell at 10:30 p.m. in response to the defendant’s request, did not have time to locate and present the defendant with a Rosario waiver form that we assume the Reading police department had available.