Criminal – Murder In First Degree – Phone Call – Lack Of Recording Of Interrogation

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Where a defendant has appealed his first-degree murder conviction, the appeal must fail because (1) his right to a post-arrest telephone call was not violated, (2) the judge was not required to give a jury instruction regarding the lack of an electronic recording of a police interrogation and (3) the prosecutor’s inaccurate reference to “reasonable response” during closing argument does not entitle the defendant to a new trial, as the judge’s instructions were accurate and “the prosecutor’s statement would not have made any difference to the jury’s determination.”

Conviction affirmed.

“We have recently clarified that the telephone rights provided by G.L.c. 276, Sect. 33A, are triggered by a defendant’s formal arrest, not by the ‘custodial’ nature of any prearrest interrogation. … Here, the defendant was arrested and booked at the conclusion of the interrogation, and he was advised of his right to make a telephone call early on during the booking process. He used the telephone shortly thereafter. As such, there was no violation of G.L.c. 276, Sect. 33A. …

“The defendant contends that the police had the requisite equipment with which to make an electronic recording of his interrogation, and that his statement should be suppressed for their unjustified failure to preserve the interrogation in this fashion. We recently considered whether to impose such a recording requirement as a prerequisite to the admissibility of a defendant’s statement, and have, consistent with our past cases, declined to do so. Commonwealth v. DiGiambattista, ante 423, 441-442, 445 (2004) … We did, however, announce that, in the case of a custodial interrogation or an interrogation conducted at a place of detention, a defendant would be entitled (on request) to a jury instruction on the significance of the failure to preserve the entire interrogation by means of electronic recording. …

“… The rule of DiGiambattista is also to be applied only prospectively, i.e., to trials occurring after the issuance of that decision. … the rule mandating jury instructions on the subject (adopted in lieu of a rule excluding unrecorded statements) will not be applied retroactively. The defendant is not entitled to a new trial in order to obtain the benefit of the DiGiambattista instruction.”

The full text of this decision can be found on Lawyers Weekly’s website, malwdev.wpengine.com.

Commonwealth v. Dagley (Lawyers Weekly No. 10-188-04) (16 pages) (Sosman, J.) (SJC) Pretrial motion to suppress evidence was heard by Richard E. Welch III, J.; case tried before Agnes, J., in Superior Court. Brownlow M. Speer on appeal for the defendant; Gregory I. Massing for the commonwealth (Docket No. SJC-09061) (Oct. 26, 2004).