NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

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

CONTRIBUTING EDITOR: MELISSA HAMBELTON I. Procedural History

The defendant was indicted for armed robbery and being a habitual offender.1 The Superior Court judge allowed the defendants motion to suppress the admission of prearraignment statements made more than six hours after arrest.2 The Commonwealth applied for leave to prosecute an interlocutory appeal which was allowed by a single Superior Court judge and the case was transferred to the Appeals Court. 3 The Supreme Judicial Court of Massachusetts (SJC) transferred the case sua sponte.4 II. Facts On February 19, 2008, a man entered a bank in Reading, told a teller that he had a gun, and ordered the teller to give him money.5 The man fled upon the teller giving him a substantial amount of money.6 Detective Michael Saunders and State Trooper Shawn ONeil traveled to Albany, New York, after receiving information that the defendant may have participated in the robbery.7 Saunders and ONeil spoke with the defendant, who was released from a New York state prison the previous day.8 While speaking with the defendant, Saunders and ONeil told the defendant he was a suspect in a robbery that took place in Reading, read him his Miranda warnings, and recorded the interview.9 At the end of the

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Commonwealth v. Fortunato, 466 Mass 500 (2013). Id. at 500-501. Id. at 503. Id. Id. at 501. Id. Commonwealth v. Fortunato, supra at 501. Id. Id.

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interview, the defendant told Saunders and ONeil he would speak with them upon his return to Massachusetts. 10 Two days later, on November 19, 2009, Saunders and O Neil arrested the defendant in Medford at 4:10 PM and he was taken to the Reading Police Department.11 Booking procedures took place at approximately 6:00 PM, and the defendant was again read his Miranda warnings, which he acknowledged in writing.12 Saunders brought the defendant to an interview room in the police station, and again repeated the Miranda warnings.13 The defendant declined to speak with Saunders and was brought back to his holding cell.14 At 10:30 PMover six hours after his arrest the defendant stated he wanted to speak with Saunders.15 Saunders went to the defendants cell, but did not do any of the following: say anything to the defendant about his right to a prompt arraignment, provide the defendant with any sort of prompt arraignment form, and did not restate the defendant s Miranda rights.16 The defendant proceeded to speak with Saunders, ultimately telling him he did not want this matter going to trial, that he could plead guilty, and that he had pled guilty before.17 III. Issue Whether the contents of the 10:30 PM conversation between the defendant and Saunders fell within the scope of the Rosario rule, thus barring its admission into evidence.18 IV. Holding and Reasoning The SJC held that the statements made on November 19th at 10:30 PM between the defendant and Saunders were part of continuing police questioning and that the Rosario rule applied, affirming the trial courts order granting the defendants motion to suppress.19 The Rosario case established a bright-line rule intended to make the rights of police in questioning an arrested person, and the standard for

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Id. Id. at 502. Id. Commonwealth v. Fortunato, supra at 502. Id. Id. Id. Id. at 502-503. See id. at 503-504, 509. Commonwealth v. Fortunato, supra at 509.

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suppressing statements made by the defendant after arrest, but prior to arraignment as clear as possible to police, prosecutors, judges, and defense counsel.20 The Rosario rule states that any statement made by a person under arrest, over six hours after the arrest is made, is inadmissible as evidence unless the person under arrest validly waived their right of timely presentment to a court for arraignment.21 In this case, the SJC stated that the Rosario rule serves many purposes including: protecting against unwarranted police pressure, facilitating the right to counsel of the criminal defendant, and ensuring that the criminal defendant receives a prompt statement by judge or magistrate of the charges against him.22 Serving these purposes, the SJC determined that the 10:30 PM conversation between the defendant and Saunders was an integral part of police questioning and subject to the six-hour time limitation imposed by the Rosario rule.23 In coming to this conclusion, the SJC took a realistic view of what can constitute police questioning; this realistic view included weighing the following four facts: (1) the defendant was in custody for over six hours; (2) the defendant was unsuccessfully interrogated by Saunders around 6:30 PM; (3) the defendant was in the same police station without an arraignment or some other intervening event; and (4) the defendant asked to speak to Saunders specifically.24 These facts ultimately allowed the SJC to conclude that the 10:30 PM conversation constituted police questioning and the Rosario rule applied.25 V. Impact on the Law This case is significant because it further clarified what constitutes police questioning under the Rosario rule.26 The Commonwealth argued that the Rosario rule did not apply in this case because the defendants statements were unsolicited and voluntary. 27 However, the SJC decisively announced that the facts of this case do fall under police questioning and the application of the Rosario six-hour rule was appropriate.28 The SJC stated that the Commonwealths argument that the Rosario rule does not apply to unsolicited or voluntary statements was misplaced in this
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Id. at 505-506. Id. at 504. Id. at 506. Id. Id. Commonwealth v. Fortunato, supra at 506. See id. at 504-505, 509. Id. at 505-506. Id. at 509.

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particular case and was an issue left for another day.29

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Id.