428 Mass. 711 | Mass. | 1999
The defendant appeals from his conviction of murder in the first degree. He argues that his statutory right to use a telephone, G. L. c. 276, § 33A, was violated, and, consequently, his motion to suppress two statements he made to the police should have been allowed by the judge. Specifically, he claims that the judge’s ruling that he was not in custody, and therefore not entitled to § 33A rights, when he provided the first statement was erroneous. The defendant also requests that we exercise our power under G. L. c. 278, § 33E, to reduce the verdict to murder in the second degree. We rule that exclusion of the statements would not be appropriate because at trial the defendant himself testified that he was given the opportunity to make a telephone call prior to providing either of the chai-
1. Background. On December 8, 1995, the Lawrence police department was informed by Gloria Pena that her two children, Akeem Nathaniel Cintron, two and one-half years old, and Manuel Alicea, eleven months old, were buried in the Bellevue Cemetery in Lawrence. Captain Mulchan of the Lawrence police department then contacted Sergeant John Garvin of the Massachusetts State police. Garvin, Mulchan, and Detective Kirkham of the Lawrence police department traveled to the cemetery. The three officers searched for the bodies, but were unable to locate them. They then traveled a short distance to the apartment in Lawrence where Pena resided with her boy friend, the defendant, David Alicea. On arrival, at approximately 3:15 p.m., the officers informed the defendant that they were investigating the disappearance of the children. The defendant responded that he had sent the children to Puerto Rico because there was no heat in the apartment. At this juncture Kirkham read the defendant his Miranda rights for the first time. When told that the police had received information that the children were buried in the cemetery, the defendant asked that Pena be brought to the apartment. At approximately 3:30 to 3:40 p.m. Pena was brought to the apartment accompanied by Detective Mary Bartlett. After sitting together in silence for some time, Pena informed the defendant that she had told the police where the children were. The defendant did not respond, and Pena left with Bartlett after making this statement. Shortly thereafter the defendant indicated that the children were in the cemetery. The defendant agreed to travel with the police to the cemetery. The four then traveled to the cemetery, Garvin alone in his car and the defendant and Kirkham in the rear of Mulchan’s car. At the cemetery the defendant did not get out of the car at first. He directed Garvin and Mulchan to a point in the woods, while Kirkham stayed with the defendant at the car. Garvin and Mul-chan were unable to locate the bodies, so they asked for the defendant to “come up.” The defendant then walked with
On arrival at the station the three ate a meal they had picked up on the way back from the cemetery. After eating the meal, the defendant was taken into an interview room by Garvin and Kirkham. He was read his Miranda rights for the second time, and signed a Miranda waiver card. Garvin and Kirkham then questioned the defendant with Garvin writing out the defendant’s answers.
That evening the bodies of the two children were recovered from the cemetery. An autopsy performed the following morning determined that Akeem Nathaniel had died of asphyxiation
On December 9, 1995, the defendant was read his Miranda rights for the third time and questioned. At this time the defendant gave a statement in which he denied any involvement in the children’s deaths. The defendant stated that Pena told him that she tilled Akeem Nathaniel by covering his mouth to stop him from crying. The defendant signed this second statement. He indicated that he had not signed the first statement because it was not all true.
The defendant moved to suppress his statements, alleging that he was deprived of various constitutional and statutory rights, including his right to make a telephone call.
At trial, Garvin read the two statements in evidence. The defendant testified that his first statement, in which he incriminated himself, was false and was made in order to protect Pena. On February 28, 1997, the jury convicted the defendant of murder in the first degree.
2. The right to use a telephone under G. L. c. 276, § 33A. The only ground raised on appeal is that the police violated the
We conclude that in the circumstances of this case, the statements should not be suppressed. The defendant took the stand at trial and testified, in effect, that his rights under G. L. c. 276, § 33A, were honored.
3. General Laws c. 278, § 33E. We have reviewed the record and find no reason to exercise our power under G. L. c. 278, § 33E.
Judgment affirmed.
The defendant testified at trial that Garvin did not write out “everything I was saying.”
The statement does not read in precise chronological order but, rather, it was written out as the defendant related the story to the officers.
In addition to the alleged deprivation of his statutory right to use a telephone, the defendant alleged that the statements were taken in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and his rights under arts. 12 and 14 of the Massachusetts Declaration of Rights; he did not knowingly, intelligently, and voluntarily waive his right to remain silent; and the police intentionally failed to arraign him promptly, depriving him of his rights under the Fifth, Sixth, and Fourteenth Amendments and art. 12. The alleged violation of the statutory right to use a telephone is the only one of these grounds argued on appeal.
General Laws c. 276, § 33A, provides that: “The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter.”
The defendant testified on cross-examination that he was offered the chance to make a telephone call before providing the first statement.
The prosecutor: “Okay. And, at that point, Sergeant Garvin said. . . I’m going to write down everything you say?”
The defendant: “That’s what he said.”
The prosecutor: “And he started with some general information about who you were, your date of birth, where you lived?”
The defendant: “Before that, he asked me if I wanted to make a phone call.”
The prosecutor: “Okay. And did you make a phone call after he gave you that opportunity?”
The defendant: “No. I didn’t have my sister’s numbers.”
Later in his testimony, the defendant repeated that he was offered the chance to make a telephone call prior to the questioning:
The prosecutor: “You never told them, hey, I want to call up an attorney, I want to call up my mother, I want to think about this?”
The defendant: “I didn’t have my family’s phone number.”
The prosecutor: “Did you ever ask them or tell them that you wanted*716 to call your sister because you have their phone number?”
The defendant: “No, because they just asked me if I wanted to use the phone before the questioning even began.”