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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. Gonzalez,
Hampden.
Present: Armstrong, C.J., Perretta, & Doerfer, JJ.
The case was tried before W. Michael Goggins, J.
Ian Stone for the defendant.
Sidney E. Reavey, Assistant District Attorney, for the Commonwealth.
PERRETTA, J.
After a
jury trial in the District Court, the seventy-six year old defendant was found
guilty on a complaint charging him with indecent assault and battery on an
eight year old girl whom we shall refer to as Jane. See G. L. c. 265,
§ 13B. On appeal the defendant challenges the use at trial of statements
he made to the police. He argues that his statements flowed from an illegal
arrest and an invalid waiver of his Miranda rights. He also argues that the
prosecutor's closing argument created a substantial risk of a miscarriage of
justice. We affirm the conviction.[1]
1. The trial. There was evidence, both direct and hearsay (fresh complaint), to
show that the defendant was well-acquainted with Jane and her family. He was so
like a family member, a grandfather, that Jane called him "Tio,"
meaning uncle in Spanish.
Jane returned home from school at about
Once the defendant was inside the vehicle, he asked Jane if she had a
boyfriend. When she replied "no," the defendant squeezed her vagina
and said, "'I'm your boyfriend, right?'" Jane slapped his hand away,
opened the car door, ran to a neighbor's house, and, now crying, pounded on the
door. Her neighbor invited her in and gave her a cold drink.
When Jane told the neighbor what had happened, the neighbor made Jane telephone
her mother at her place of work. The mother immediately came to the neighbor's
home, retrieved Jane, and brought her to her pediatrician's office. Jane told
her pediatrician what had happened, and he advised her mother that she should
report the incident to the police. The mother followed the pediatrician's
advice and notified the
At this point in the trial, the defendant sought a voir dire hearing concerning
the voluntariness of the statements he made while in the custody of the police.
He claimed that such a hearing was necessary to determine whether his
statements were the product of a knowing and intelligent waiver of his Miranda
rights and were voluntarily made. See Miranda v.
Officer Rief was the only witness at the voir dire hearing. He testified that
on
As related by Rief, a "brief moment later," the door was opened by an
elderly Hispanic male, later identified as the defendant. As the officers stood
in the hallway and, within a second, before they could say anything, the
defendant blurted out in plain and understandable English, "'I didn't
touch her. I didn't touch her.'" Rief then asked the defendant, "Sir,
can you please step out into the hallway." The defendant complied and
stepped from his apartment into the hallway. Rief asked him his name and for
some identification to prove the same. After the defendant confirmed that he
was William Gonzalez, Rief advised him that he was under arrest for assaulting
Jane, placed him in the police cruiser, and brought him to the police station.
After arriving at the station and booking the defendant, Rief read him his
Miranda rights in English. Rief testified that he assumed that the defendant,
who spoke with a Spanish accent, understood English and that his assumption was
based upon the fact that the defendant answered his questions in English. The
defendant was not asked to sign a Miranda waiver card. Although the booking
area where the defendant was advised of his rights was under routine video
surveillance, no tape of the interrogation was produced at trial.[2]
During the interrogation, which was conducted in English, the defendant admitted
to Rief that he had been in his car in front of Jane's home and that she was in
his car during the time of the events in question. After making those
statements, the defendant refused to say anything more. Specifically, and
according to Rief, the defendant said, "'I don't want to talk.'" Upon
hearing that, the police ended the interview.
Based upon the evidence before him, the judge found that the intent of the
police in going to the defendant's home "was to confirm [his] identity
. . . and ask him some questions about this incident," that the
statement he made upon opening his door and seeing the uniformed police was
"entirely spontaneous,"[3]
and that the defendant understood the English language and Rief's statements to
him at the police station, that is, the Miranda warnings. These findings of
fact led the judge to conclude that the defendant's statements to Rief were
knowingly and voluntarily made and were admissible in evidence. After Rief
related the defendant's statements to the jury, the judge, pursuant to the
defendant's request, instructed them on our "humane practice" rule.
Although the defense did not present any witnesses to testify,
cross-examination of the Commonwealth's witnesses and the defendant's closing
argument were to the point that the incident was based upon Jane's
embellishment of an innocuous encounter. The prosecutor countered with argument
that the defendant claims was fraught with improper rhetorical questions,
mischaracterizations of the theory of defense, forbidden invitations that the
jury put themselves in Jane's place, statements vouchsafing for Jane's
credibility, misstatements of the facts, and reference to facts not in evidence.[4] No objections were made to the
prosecutor's closing argument.
2. The defendant's postarrest statements. We take up first the defendant's
claim that his postarrest statements to the police should have been suppressed.
On this point the defendant argues that (1) his arrest without a warrant was
illegal and his statements, therefore, subject to suppression; and (2) his
waiver of his Miranda rights and his statements to the police were not
knowingly, intelligently, and voluntarily made. In considering this claim, we
accept the judge's findings of fact, absent clear error, but make independent
review of the correctness of his application of constitutional principles to
the facts found.
In claiming that his arrest was illegal, the defendant argues that if his
arrest took place within his apartment, there were no justifying exigent
circumstances, and, if it took place in the hallway, the police wrongfully
induced him to step outside his apartment. As to the first ground, for purposes
of the admissibility of the postarrest statements it makes no difference if the
defendant was arrested unlawfully in his home. The police had probable cause to
arrest him, and his postarrest statements are therefore admissible so long as
he voluntarily waived his Miranda rights and voluntarily made the statements.
Marquez brings us to the questions whether the defendant's postarrest waiver of
his Miranda rights and his statements to the police were knowingly and
voluntarily made. Although these issues are separate, each is determined on the
basis of the totality of the surrounding circumstances.
Based upon the judge's findings of fact as well as those "clearly evident
from the record," Commonwealth v. St. Peter,
In arguing that he did not voluntarily, knowingly, and intelligently waive his
Miranda rights, the defendant focuses upon the judge's finding that he could
understand English. He claims that the sole basis for this finding was an
exchange that had occurred on the morning of the second day of trial, when the
defendant challenged the accuracy of the interpreter's translation.[5] Although the judge did not make
detailed findings concerning the defendant's ability to understand English, we
think his conclusion evident from the record. The first words spoken by the
defendant upon seeing the police were
spontaneously uttered in English -- "I
didn't touch her. I didn't touch her." Rief spoke to the defendant in
English, and the defendant responded in English. His responses included his
admission that he and Jane were in his car in front of Jane's home during the
time of the incident in dispute as well as his refusal to say anything more.[6] We see no error in the judge's
finding and conclusion that the defendant understood English and that the
Commonwealth had proved beyond a reasonable doubt (see Commonwealth v. Edwards,
420 Mass. at 669) that he knowingly, intelligently, and voluntarily waived his
Miranda rights.
As for the claim of a lack of voluntariness in
the statements he made after receiving his Miranda warnings, the defendant
points not only to his alleged inability to understand English, a claim we have
decided against him, but also to his alleged hearing difficulties and his age.
As for these claims, see Commonwealth v. Filippidakis,
It follows from what we have said that we have no basis for reversing the
defendant's conviction on the basis of the judge's conclusions that the
defendant's waiver of his Miranda rights was knowingly, intelligently, and
voluntarily made, as were the statements that he thereafter made to the police.
Because we have no cause to reverse the defendant's conviction on the basis of
the judge's determination that his postarrest admissions could be put before
the jury, we must next consider whether statements made by the prosecutor in
his closing argument constituted error and, if so, whether any such error
created a substantial risk of a miscarriage of justice.
Our reading of the transcript of the relatively brief closing argument leads us
to conclude that each of the statements set out in paragraphs (1) through (5),
note 4, supra, was, at best, a disfavored risky, dramatic, hyperbolic, and
rhetorical embellishment.
Even if any or all of these statements were improper and irrespective of
whether they are considered separately or cumulatively, we see no substantial
risk of a miscarriage of justice. Four witnesses testified to Jane's
fresh-complaint testimony, Rief related the defendant's inculpatory statements
to the jury, the judge instructed that closing arguments were neither evidence
nor a substitute for evidence, and the jury acquitted the defendant on the
complaint charging him with assault and battery.
Judgment affirmed.
FOOTNOTES:
[1] The
complaint also charged the defendant with assault and battery and kidnapping.
See G. L. c. 265, §§ 13A and 26. The jury acquitted the defendant of
assault and battery, and the Commonwealth entered a nolle prosequi on the
kidnapping charge.
[2] There
was, however, testimony showing that, after holding tapes for thirty days, the
police would reuse them. In any event, the record gives no indication that the
defendant made a request for a copy of the tape.
[3] The
defendant does not challenge the judge's finding and conclusion on this
statement.
[4] Specifically, the defendant complains about the following
remarks:
(1) "As a defense attorney in a case like
this and there is a lot of evidence to a finding of guilty, what are you going
to do about that? Well, one thing that you can do, which has been done, is to
try to distract you with things that really don't matter, that don't go to the
heart of the issue. . . . [Whether the victim was wearing a backpack, whether
her sister was on her way home, whether the victim was waiting for her mother
or her sister] are all things that are mere distractions . . . really that
have nothing to do with anything."
(2) "How would you like to be sitting
there with all these strangers looking at you and asking you questions."
(3) "[Jane] told you that the defendant, a
person she knows well, pulled up in his car. She told you . . . that he grabbed
her by the arm and he got her in his car. She knows him well and she thinks of
him as a grandfather. Up until that point she wasn't afraid. She was reluctant
to go with him, she is not interested in going for a ride with a seventy year
old guy, even if he is a grandfather figure."
(4) "[The neighbor] told you she heard a
doorbell. She looked out and didn't see anyone. The door rang again and she
went out and found [Jane] in a heap on the steps sobbing."
(5) "[Jane] is a well-brought up child and she knows what she is supposed
to do. If somebody touches you wrong, you tell your mother and then you go to
the police and do whatever your mother tells you to do."
(6) "When you are out to arrest or investigate a felony, you don't
allow the person to go back into his house: maybe he has a weapon."
[5] The following exchange had occurred:
Interpreter: "Excuse me, Judge, the
defendant seems either to not be able to hear me, that is, to hear the
interpreter, or not to understand. He said, 'I can hear you, but you are not
interpreting well.'"
Judge: "How would he know that?"
Interpreter: "'Because I am listening to
you and I don't know what you are saying.'"
Judge: "Well, please describe the problem
that you are having, sir, so the Court can understand."
Interpreter: "'Okay, it's all right.'"
Judge: "Okay."
The transcript does not reflect any subsequent objection by the defendant,
and we infer that the defendant had no further hearing difficulties and the
issue was resolved.
[6] To
bolster his claim that he had difficulty understanding English, the defendant
relies upon and quotes from a transcript of a hearing conducted about five
months prior to trial. The transcript is of the colloquy conducted on the
defendant's tendered but subsequently withdrawn offer to plead guilty during
which he told the judge that although he understood English and the questions
put to him, he could not hear well. But see Mass.R.Crim.P. 12(f), 378 Mass. 870
(1979) ("[E]vidence of a plea of guilty, later withdrawn, . . . or of an
offer to plead guilty . . . to the crime charged or any other crime, or
statements made in connection with, and relevant to, any of the foregoing pleas
or offers, is not admissible in any civil or criminal proceedings against the
person who made the plea or offer"). However, there is nothing in the
record before us to show that the colloquy transcript was ever put before the
trial judge. In any event, and as stated, the basis for the judge's conclusion
that the defendant understood English is evident from the trial transcript.