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11/17/77 COMMONWEALTH v. ISRAEL GONSALEZ CRUZ

November 17, 1977

COMMONWEALTH
v.
ISRAEL GONSALEZ CRUZ



Middlesex. Indictments found and returned in the Superior Court on April 10, 1974. A pre-trial motion to suppress evidence was heard by Lynch, J., and the cases were tried before him. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Wilkins, JJ.

SYLLABUS BY THE COURT

Constitutional Law, Admissions and confessions, Probable cause. Admissions and Confessions. Arrest. Probable Cause. Practice, Criminal, Trial of indictments together. Evidence, Hearsay.

The opinion of the court was delivered by: Hennessey

With respect to a defendant indicted for arson and murder, there was no reversible error in the denial of his pre-trial motion for suppression of incriminating statements and confessions made at a police station, where a Conclusion was warranted that his detention comported with requirements of the Fourth Amendment to the United States Constitution, in that the circumstances clearly warranted the Conclusion that the defendant was detained with probable cause, on facts known to the police at the time he entered a police cruiser after being seen at three fires related in time and location, or in that the defendant had accompanied the police officers to the station voluntarily, and then, while "in custody" but under no restraint or compulsion, made implausible and evasive statements which, when coupled with his having been discovered in an alley behind the scene of the third fire, gave the police probable cause after the defendant's first hour at the station to detain him for further questioning. [681-685]

With respect to a defendant indicted for arson and murder, there was no reversible error in the denial of his pre-trial motion for suppression of incriminating statements and confessions made by him approximately four hours after arrival and commencement of interrogation at a police station and immediately before his arrest, where a Conclusion was warranted that his rights under the Fifth Amendment to the United States Constitution were adequately protected, notwithstanding the absence of police repetition of previous Miranda warnings when the defendant was informed that he could not go home, where it appeared that he was fully aware of his status as a suspect, that the Miranda warnings given at the outset were both adequate and timely, that the interview was continuous, and that the defendant fully understood his legal rights and knowingly and intelligently waived them. [685-688]

No violation of the rights of an indicted defendant under the Fourteenth Amendment to the United States Constitution was demonstrated by reason of the procuring of his confession by police after an interrogation one morning from 12:30 A.M. to 4:30 A.M. at a police station, where coercion was not shown by the totality of the circumstances, including the facts that the defendant, after a conversation with relatives, came to the station voluntarily, that he was not physically restrained there, and that he was fully advised of his rights and was mentally alert and understood what was said to him. [688-689]

There was no error in the denial of the defendant's motion to sever indictments for attempted arson, for arson, and for murder in the first degree arising out of three fires closely related in time and location. [690-691]

There was no error at the trial of indictments in permitting the Commonwealth to introduce in evidence unequivocal denials made by the defendant in response to questioning by the police prior to his confession where the denials were admitted to show his "state of mind concerning the voluntariness of his confession," and were followed by the Judge's careful instructions, and where any inference of guilt from the police's initial questioning and the defendant's unequivocal denials was negligible, and the questions were highly relevant to the issue of voluntariness. [691-692]

The defendant was tried before a Superior Court jury on indictments charging murder in the first degree, arson, and attempted arson. Before trial, the defendant moved to suppress certain statements made by him at the Lowell police station and to sever the indictment for attempted arson from the other indictments charging arson and murder. After a lengthy voir dire, the Judge denied both motions. At the close of the Commonwealth's case, the trial Judge allowed a motion for a directed verdict on the attempted arson indictment. On the other charges, the jury returned verdicts of guilty of murder in the second degree and arson.

The defendant appeals under G. L. c. 278, §§ 33A-33G, and argues three assignments of error: *fn1 (1) the denial of the defendant's motion to suppress; (2) the denial of the motion to sever; and (3) the admission in evidence of unequivocal denials made by the defendant when questioned by the police. We conclude that there was no error.

We summarize the facts as found by the Judge on voir dire. On February 15, 1974, shortly after 8 P.M., a fire occurred at 909 Middlesex Street, Lowell, in a first-floor apartment. An occupant of that apartment, Fernando M. Andrades, died as a result of injuries suffered in the fire. At approximately 10:30 P.M., a second fire occurred in the same building in a second-floor apartment. Shortly thereafter, still another fire of lesser dimensions occurred at 5 Queen Street in an occupied building which was roughly diagonally across the street from the scene of the first two fires.

Several witnesses placed the defendant at the scene of each of these fires. At approximately 8:40 P.M., both Patrolman Upton and Officer Waterhouse of the Lowell police department saw the defendant at the scene of the first fire. Each man spoke to the defendant briefly during the course of their investigations. Subsequently, Officer Waterhouse saw the defendant standing in a crowd of people at the scene of the second fire.

Sometime after the fires at Middlesex Street, the defendant appeared at the second-floor apartment of one Michael Rivera, an occupant of the 5 Queen Street apartment building. The defendant knocked on Rivera's door, inquired about a woman, and left. Moments later, Rivera heard a noise, ran upstairs, and saw a fire in the hallway of the third floor. He then began to look into various rooms in the building. On opening a door to the basement, Rivera saw the defendant sitting in the dark at the top of the stairs. The ...


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