Opinion
15-P-736
03-03-2016
COMMONWEALTH v. AYYUB ABDUL-ALIM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth brings this interlocutory appeal from an order allowing the defendant's motion to suppress statements made to police more than six hours after his arrest and before he had been arraigned. For the reasons set out below, we vacate the judge's order and remand for further proceedings consistent with this decision.
Not before us is the order denying a separate motion of the defendant seeking to suppress statements he made to his wife and the fruits therefrom.
The judge allowed the motion on the basis of Commonwealth v. Rosario, 422 Mass. 48, 56 (1996), which created a bright-line rule that "[a]n 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 or recorded waiver of his right to be arraigned without unreasonable delay." The Commonwealth did not seek reconsideration, but instead brought this interlocutory appeal in which it makes two arguments. First, the Commonwealth contends that the issue was waived. Second, it argues that Rosario does not apply because the defendant's statements do not relate to the crime for which he was detained at the time.
It is true, as the Commonwealth points out, that the defendant did not cite to Rosario in his motion to suppress, or during the hearing on the motion. Nonetheless, the judge understood that the defendant had raised "the delay between the time of his arrest and the interview" as part of his motion. The judge's understanding was permissibly grounded on the defendant's memorandum, which referenced the length of his pre-arraignment detention in connection with his argument that his will was overborne and his statements were not voluntary. This argument, in essence, is the conceptual underpinning of Rosario. Contrast Commonwealth v. Quint Q., 84 Mass. App. Ct. 507, 515 (2013) (issues distinct from those raised in defendant's motion to suppress considered waived where lack of notice to prosecution left it unable to determine which witnesses to call and what evidence it should offer to meet its burden). Accordingly, we do not think application of Rosario was waived, although it cannot be disputed that it could certainly have been better raised.
Nonetheless, the Commonwealth argues that it was not on sufficient notice that Rosario was at issue. See ibid. We note in this regard that, in addition to the fact that the defendant did not mention the case in his briefing, neither the defendant nor the judge raised it during the evidentiary hearing or the argument that accompanied it. There is thus some force to the Commonwealth's argument that it was caught by surprise when the judge's decision relied on Rosario. That force is to some extent undercut by the fact that the Commonwealth did not thereafter move for reconsideration.
All that said, at oral argument the prosecutor represented as an officer of the court that the Commonwealth would have proceeded differently below had it known that the rule of Commonwealth v. Rosario was at issue. In light of this representation, and the fact that Rosario was not explicitly cited by the defendant, either in his motion papers or in argument, we believe the better course is to remand the matter to permit the Commonwealth to advance any evidence or argument concerning the application of Rosario to this case.
Because Rosario will be the issue on remand, we now turn to the Commonwealth's second argument on appeal. After repeated reports to the police by the defendant's wife that he was involved in guns and drugs, the defendant was arrested for possession of a firearm on December 9, 2011. Officers interviewed the defendant two days later, while he remained in pre-arraignment custody, about his "ability to obtain weapons out in the streets, and drugs, in Holyoke, the ability to obtain an AK47 and bulletproof vests." The officers did not question the defendant about the charge on which he was detained.
Relying on a string of Pennsylvania cases, the Commonwealth argues that Rosario does not apply because the defendant's statements did not relate to the crime for which he was then detained. This argument was rejected in Commonwealth v. Powell, 468 Mass. 272, 282-283 (2014), where the Supreme Judicial Court held that, absent extraordinary circumstances, the safe-harbor period of Rosario begins when a defendant is arrested and the rule is not charge-specific. Accordingly, on remand, the question will be whether this case falls within one of the recognized exceptions to the Rosario rule, namely, the "rare" cases of natural disaster or emergency. Commonwealth v. McWilliams, 473 Mass. 606, 613-614 (2016), citing Commonwealth v. Powell, 468 Mass. at 276.
The judge's order allowing the defendant's motion to suppress statements made to officers while in detention on December 11, 2011, is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.