Recently the SJC ruled in COMMONWEALTH vs. JOSEPH MORGAN 460 Mass. 277 (2011). I want to give a congratulations to a law school classmate, Detective James Latham of Lowell P.d. on doing a great job in this case. The case involved Homicide, Felony-Murder Rule, and a Motion to suppress over the Voluntariness of statements. The court ruled that a Superior Court judge did not err in denying the criminal defendant’s pretrial motion to suppress statements he made to police, where the defendant’s statements (which were voluntary and were made after he voluntarily, knowingly, and intelligently waived his Miranda rights) were made after he voluntarily, knowingly, and intelligently waived (in writing) his right to an arraignment without unreasonable delay.
The court in ruling stated “At a murder trial, the defendant claims that the judge erred in denying his motion to suppress statements he made to police. He argues that his waiver of his right to a prompt arraignment pursuant to Commonwealth v. Rosario, 422 Mass. 48 , 56 (1996), was not voluntary because the delay in the arraignment amounted to “psychological coercion.”
In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642 , 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213 , 218 (2002). We summarize the judge’s findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Garcia, 443 Mass. 824 , 828 (2005).
At 1:20 A.M. on July 5, 2006, the defendant, then twenty-one years of age, was arrested for the murder of Alberto Cintron (victim). The murder had occurred in Lowell.
Later that morning, at 8 A.M., Detective James Latham of the Lowell police department reported to the station. He and Detective Mark Poirier went to the cell block in the basement to escort the defendant to the criminal bureau on the first floor to have “major case prints” of the defendant taken by the State police. Taking “major case prints” involves the use of a roller and other equipment not available to the Lowell police department. The State police technician, among other things, takes palm prints and measures a suspect’s thumb and hand size. The equipment had been set up in an interview room, so Detectives Latham and Poirier brought the defendant to that room.
Between 10:30 and 10:45 A.M., the detectives were notified that the State police had completed their work and that the defendant was ready to be returned to his cell. As the officers were about to escort the defendant back to the cell block, Detective Poirier asked the defendant whether he would like to speak with them. The defendant replied that he would think about it. After a few minutes by himself, the defendant said he would speak with them.
While in the interview room, the defendant was offered a soda and a cigarette, which he accepted. After three or four minutes, Detective Poirier read the defendant the Miranda warnings from a preprinted form. The defendant indicated that he understood his rights by checking the “Yes” box on the form and by writing his initials. One of the detectives next read the Rosario waiver form to the defendant. The defendant was asked whether he wanted to have his statements electronically recorded. The defendant declined and so indicated on a form. The defendant, however, agreed to the audio recording of the administration of the Miranda warnings.
The tape recorder was activated. On the recording, to which we have listened, the defendant’s voice is clear and calm, as is Detective Latham’s. There is no hint of nervousness and no tone of coercion on Detective Latham’s part. Detective Latham first reviewed the Miranda warnings as designated on the preprinted form line by line. After each warning was read, the defendant indicated that he understood what was read to him. Detective Latham then stated that there was another waiver form, the Rosario waiver form. Detective Latham asked the defendant to read aloud the first paragraph of this form. The defendant read the first paragraph with ease and acknowledged that he understood the content of the form.
After the recorder was stopped, the defendant read the Rosario waiver form to himself and signed it at 11:02 A.M. Then he gave a brief unrecorded statement. He was not under the influence of alcohol or drugs, and he was coherent. He gave the statement in narrative form after Detective Latham asked him what happened the previous day. The defendant’s narrative was clear and it was recited in chronological order. The interview ended when another officer knocked on the door and told Detective Latham that the defendant’s attorney had arrived to speak with him. The police transported the defendant to the Lowell Division of the District Court Department for his arraignment between 11:25 and 11:30 A.M.
In Commonwealth v. Rosario, supra at 56, the court held that 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 . . . waiver of his right to be arraigned without unreasonable delay.” See Mass. R. Crim. P. 7 (a) (1), as appearing in 442 Mass. 1506 (2004) (“A defendant who has been arrested shall be brought before a court if then in session, and if not, at its next session”). Here, the judge found that the defendant’s statements were voluntary; were made after he voluntarily, knowingly, and intelligently waived his Miranda rights; and were made after he voluntarily, knowingly, and intelligently waived (in writing) his Rosario rights. The judge’s findings and conclusions are supported by the evidence and there is no reason to disturb them. To adopt the defendant’s argument, that the psychological pressure of being in custody prior to arraignment suffices by itself to negate the voluntariness of a waiver of the Rosario rights, would obviate the utility of a waiver of the Rosario rights and would lead to the suppression of any statement made after the six-hour safe harbor period. This is not the governing law. Rather, when a defendant makes a statement outside the safe harbor period and after making an informed and voluntary written waiver of his Rosario rights, as was the case here, his statement is admissible. Commonwealth v. Rosario, supra. There was no error in denying the defendant’s motion to suppress.”
Attorney Ronald A. Sellon