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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Diaz, 422
Supreme Judicial Court of Massachusetts, Hampden.
Submitted
Decided
Michael J. Traft,
[422
Before LIACOS, C.J., and WILKINS, O'CONNOR, GREANEY
and FRIED, JJ.
WILKINS, Justice.
The
defendant was convicted of murder in the first degree of two men and given
consecutive terms of life imprisonment without the possibility of parole. He was also convicted of unlawfully carrying
a firearm. The evidence indicated that
the defendant had sold drugs as part of a drug operation in Holyoke headed by
Pedro Ramos and had participated in the killings to avenge wrongs to Ramos or
his enterprise thought to have been committed by the victims. The defendant does not challenge the
sufficiency of the evidence to warrant his convictions.
The
defendant objects to the denial of his motion to suppress statements that he
made to the police, the admission of certain evidence, the giving of a joint
venture instruction, and the judge's reasonable doubt instruction. He also seeks relief pursuant to G.L. c. 278,
§ 33E (1994 ed.). We affirm the
convictions and decline to order a new trial or to alter the consecutive
sentences imposed on the murder convictions.
[1] The
evidence warranted a finding that the defendant rode to the scene of the two
murders with the two victims and two other men.
An eyewitness testified to the defendant's participation in the
shootings. The defendant made admissions
of guilt and incriminating statements to persons who testified. The defendant also gave a signed statement to
the police, which was read to the jury and admitted in evidence, in which he
stated that he rode to the site of the shootings with the victims and the two
men who, he said, shot the victims.
According to his statement, when he asked what he was to do, he was told
to act as a lookout for the two men who had the guns. He also stated that he had witnessed the
shootings from across the street from where the shootings occurred. That statement, inconsistent with evidence
that the defendant was one of the shooters, was sufficient with other evidence,
contrary to the defendant's claim, to justify a jury instruction on joint
venture and, therefore, jury findings of guilty of murder on the theory of
joint venture. We need not discuss this
issue further.
[2]
1. The defendant challenges the denial
of his motion to suppress statements that he made while he was being
fingerprinted. On the day of his arrest,
the defendant had been given Miranda warnings and had signed an incriminating[422 Mass. 271] statement. He remained in the Holyoke police station
during the next day, a Sunday. That
evening, the police decided to take the defendant's fingerprints and palm
prints. Before the prints were taken,
the defendant said that he wanted to speak with the detectives. The detectives told him that he could do so
after the prints were taken. The
defendant was then taken from the cell block to the printing room. While a different detective was taking the
defendant's prints, the defendant blurted out, "This is really going to fuck
me up." The detective asked,
"Why?," and the defendant made a second statement, saying that he had
handled one of the guns on the previous day, but that it had jammed. The detective stopped the defendant from
saying anything further. In fact, later
tests of two guns that the police obtained and matched to bullets and casings
found at the crime scene yielded no identifiable fingerprints.
Even if we
assume that the effect of the Miranda warnings of the previous day had fully
dissipated (the motion judge ruled otherwise), renewed Miranda warnings were
not required because the defendant's statements were not the product of a
custodial interrogation conducted in violation of rights which Miranda warnings
were designed to protect. See Rhode Island v. Innis,
446 U.S. 291, 300‑301, 100 S.Ct. 1682, 1689‑1690,
64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 478, 86
S.Ct. 1602, 1629‑1630, 16 L.Ed.2d 694 (1966)
("Volunteered statements of any kind are not barred by the Fifth Amendment
and their admissibility is not affected by our holding today"). The first statement was spontaneous and unprovoked. The detective's response, a one word
question, seems to have been a natural reflex action (as the judge found) that
was invited by the defendant's first statement.
Although the second statement was incriminatory, it was volunteered and
not the product of improper probing questioning. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989),
cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110
L.Ed.2d 276 (1990); United States v. Rhodes, 779 F.2d 1019,
1032 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct.
2916, 91 L.Ed.2d 545 (1986); 1 W.R. LaFave & J.H. Israel,
Criminal Procedure § 6.7(d), at 514‑515 (1984). Cf.
Commonwealth v. Bryant, 390 Mass. 729, 739, 459 N.E.2d 792 (1984);
Commonwealth v. Rubio, 27 Mass.App.Ct.
506, 511‑512, 540 N.E.2d 189 (1989).
[3]
2. The defendant asserts a far‑reaching
challenge to the admissibility of all his custodial statements to the police,
contending that his statements should have been suppressed [422 Mass. 272] because
they were not electronically recorded. In 1993, we declined to create a rule
requiring electronic recording of custodial interrogations. Commonwealth v. Fryar, 414 Mass. 732, 742 n. 8, 610 N.E.2d 903
(1993). In 1985, the Supreme Court of
Alaska had held that "an unexcused failure to electronically record a
custodial interrogation conducted in a place of detention violates a suspect's
right to due process, under the Alaska Constitution, and that any statement
thus obtained is generally inadmissible" (footnote omitted).
Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985). Since our opinion in the Fryar case, the Supreme Court of
Minnesota, acting under its supervisory power, has announced a prospective rule
"that all custodial interrogation including any information about rights,
any waiver of those rights, and all questioning shall be electronically
recorded where feasible and must be recorded when questioning occurs at a place
of detention." State v. Scales, 518 N.W.2d 587, 592
(Minn.1994). A "substantial"
violation of the recording requirement requires suppression of the evidence. Id.
The
American Law Institute's Model Code of Pre‑Arraignment Procedure and the
Uniform Rules of Criminal Procedure require the electronic recording of
custodial interviews. See Model Code of
Pre‑Arraignment Procedure § 130.4(3) (1975) ("The regulations
relating to sound recordings shall establish procedures to provide a sound
recording of ... (c) any questioning of the arrested person and any statement
he makes in response thereto"); Unif.R.Crim.P. 243(b), 10 U.L.A.
32 (Master ed. Supp.1992) (as to an individual in custody, "[t]he
informing of rights, any waiver thereof, and any questioning must be recorded
upon a sound recording device whenever feasible or if questioning occurs at a
place of detention").
There is
force to a recording requirement particularly if a defendant is being
questioned at a police station. The cost
of the equipment and its operation is minimal.
The machinery is not difficult to use.
A recording speaks for itself literally on questions concerning what was
said and in what manner. Recording would tend to eliminate
certain challenges to the admissibility of defendants' statements and to make
easier the resolution of many challenges that are made. Compare
Commonwealth v. Hamilton, 411 Mass. 313, 318‑319, 582 N.E.2d 929
(1991) (motion judge suppressed tape‑recorded statement that showed [422 Mass. 273] defendant had not waived his rights) with Commonwealth v. Bousquet, 407 Mass. 854,
862, 556 N.E.2d 37 (1990) (voluntariness of confession
corroborated by videotape). Police
officials should be alert to the merits of recording custodial interrogations
and be warned that the time may come when recording in places of detention, at
least, will be mandatory if a statement obtained during custodial interrogation
is to be admissible.
We decline
at this time to adopt or prescribe a rule of general superintendence or of
common law suppressing statements taken from a defendant in custody in a police
station unless those statements have been electronically recorded. However, defense counsel is entitled to
pursue the failure of the police to record a defendant's statements. Counsel may, for example, inquire of a
testifying police officer, as happened here, whether he or she was aware of the
availability of recorders to use during the questioning of suspects. Counsel may argue to a jury and to a judge as
factfinder that the failure of the police to record
electronically statements made in a place of custody should be considered in
deciding the voluntariness of any statement, whether
the defendant was properly advised of his rights, and whether any statement
attributed to the defendant was made.
[4]
3. We conclude that the judge did not
err in admitting certain evidence. (a)
The judge did not abuse his discretion in admitting testimony that,
approximately two months before the crimes in this case, the defendant had
discussed with an acquaintance the possibility of killing a New York competitor
of Ramos, that the defendant had said that he desired to move up in Ramos's
organization, and that the defendant had volunteered to "take care
of" the problem in New York. The
defendant concedes that the evidence may have demonstrated a motive for the
defendant to participate in the murders in this case, but challenges the
substantial prejudice of that evidence.
The evidence tended to show the defendant's connection with Ramos and a
motive for committing the killings in this case. The judge's ruling, which was accompanied by
a cautionary instruction concerning proper use of the evidence, was within his
discretion. See Commonwealth v. Valentin, 420 Mass. 263,
270, 649 N.E.2d 1079 (1995).
[5] [6]
(b) The judge did not err in admitting testimony from the woman with whom the
defendant had lived for about six years concerning damaging admissions that the
defendant [422 Mass. 274] made to her concerning his
involvement in the murders. The witness
was reluctant to testify and on cross‑examination said that she had given
the police a statement only after they had threatened her with prosecution and
the removal of her children from her custody.
The witness was not married to the defendant, and we decline to
establish a common law privilege, similar to the spousal privilege of G.L. c. 233, § 20 (1994 ed.), applicable to other people
who live together. In any event, the
defendant did not raise such a challenge at trial, and the privilege, if it
were to exist, would be that of the witness, not the defendant. See
Commonwealth v. Maillet, 400 Mass. 572, 576, 511
N.E.2d 529 (1987). The voluntariness of the witness's statements to the police and
of her testimony was for the jury.
[7] (c) An
understanding of the defendant's final evidentiary argument requires the
recitation of circumstances relating to the testimony of Marilyn Reyes. Reyes testified as a Commonwealth witness
that, on the day before the murders, the defendant had told her that he had a
job to do because "they probably had found a rat and that he was going to
get paid eight thousand for it."
Reyes also testified that criminal charges were pending against her and
that, in the disposition of those charges, the prosecution would take into
consideration her help in this case. In
cross‑examination, defense counsel pressed the matter of her cooperation
in relation both to the serious criminal charges pending against her and to her
desire to avoid imprisonment and thus regain custody of her two children.
The
defendant objected to the admission of testimony from Reyes's lawyer who was
defending the criminal charges pending against Reyes. Reyes's lawyer testified to the circumstances
under which Reyes first told the prosecutor about what she knew about the
murders. Reyes's lawyer explained that
she and Reyes had met with the prosecutor in February, 1992, and that, in
response to questions from the prosecutor as to whether she knew anything about
the murder case and any statement made by the defendant, Reyes had given a
written statement of what she knew about the murder case.
This
testimony from Reyes's lawyer was admissible in the judge's discretion to rebut
the implication of the cross‑examination that Reyes's incriminating
testimony was of recent fabrication. See Commonwealth v. Saarela,
376 Mass. [422 Mass. 275] 720, 722, 383 N.E.2d 501 (1978). Therefore, the defendant's general objection
to the admission of the testimony of Reyes's lawyer about the conversation with
the prosecutor was properly overruled.
The evidence was not admissible to prove the truth of what was said, but
no limiting instruction was requested.
Moreover, the evidence was not prejudicial. The defendant's point that Reyes was
testifying to protect herself and to regain custody of her children was not
undercut.
[8]
4. The defendant's remaining arguments
can be disposed of briefly. (a) We see
no error in the prosecutor's closing argument.
(b) The judge's charge on reasonable doubt, using the words "moral
certainty," in conjunction with clarifying language, was proper. See
Commonwealth v. Gagliardi, 418 Mass. 562, 568 n.
3, 571‑572, 638 N.E.2d 20 (1994), cert. denied, 513 U.S. 1091, 115 S.Ct. 753, 130 L.Ed.2d 652 (1995). Cf.
Commonwealth v. Pinckney, 419 Mass. 341, 348‑349, 644 N.E.2d 973
(1995). (c) We decline to exercise our
authority under G.L. c. 278, § 33E, to alter the imposition
of consecutive life sentences for these premeditated, cold‑blooded
murders.
Judgments affirmed