Commonwealth v. Fortunato (Lawyers Weekly No. 10-179-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11314 COMMONWEALTH vs. JASON FORTUNATO. Middlesex. April 4, 2013. ‑ October 3, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Arraignment, Delay in commencement of prosecution, Motion to suppress, Admissions and confessions. Evidence, Admissions and confessions. Due Process of Law, Delay in commencement of prosecution. Indictments found and returned in the Superior Court Department on December 17, 2009. A pretrial motion to suppress evidence was heard by Leila R. Kern, J. An application for leave to prosecute an interlocutory appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Warren W. Lee, Assistant District Attorney (Jessica L. Noble, Assistant District Attorney, with him) for the Commonwealth. John Fennel, Committee for Public Counsel Services, for the defendant. BOTSFORD, J. The defendant stands indicted for armed robbery, G. L. c. 265, § 17, and being an habitual offender, G. L. c. 279, § 25. Citing Commonwealth v. Rosario, 422 Mass. 48, 56 (1996) (Rosario), a Superior Court judge allowed the defendant’s motion to suppress the admission of his prearraignment statements that were made more than six hours after arrest. The Commonwealth has appealed pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). We conclude that the six-hour rule set out in Rosario, which renders inadmissible statements made by an arrested defendant more than six hours after the arrest, applies to all the defendant’s statements at issue in this appeal because all the statements were the product of police questioning to which the Rosario rule applies. We therefore affirm the suppression order, for reasons somewhat different than the judge. Background. We summarize the facts the Superior Court judge (motion judge) found after an evidentiary hearing at which one police officer testified, supplemented by uncontested facts in the record. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On February 19, 2008, a man entered a bank in Reading, stated that he had a gun, and demanded that the bank teller give him money. He fled with a substantial amount of cash, but […]