Com. v. Baldassini

• Decision Date: 15 June 1970
• Citation: 260 N.E.2d 150,357 Mass. 670
• Parties: COMMONWEALTH v. Louis BALDASSINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 150

260 N.E.2d 150

357 Mass. 670

COMMONWEALTH v. Louis BALDASSINI.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 2, 1970.

Decided June 15, 1970.

Matthew T. Connolly, Boston, for defendant.

Anthony T. Petrocca, Asst. Dist. Atty., for the Commonwealth, submitted a brief.

Before WILKINS, C.J., and SPALDING, KIRK, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

The defendant was convicted on indictment No. 42,581 charging that on or about March, 13, 1967, at Quincy, he 'was concerned in the setting up a lottery for money or other property of value,' and indictment No. 42,582 charging that on or about March 13, 1967, he 'was found in building known as Steel Mill of General Dynamics Corporation, in said Quincy, with apparatus for registering bets upon the result of a trial of speed of certain beasts, to wit, horses.' G.L. c. 271, §§ 7 and 17. The indictments were tried together. The case is now before us on the defendant's exceptions to the denial of a motion to suppress certain evidence and to the admission of evidence on events of January 30 and 31 and February 2, 1967.

The pleadings and evidence material to the issues before us are stated in the bill of exceptions as follows. From January to March, 1967, State police officers Peter A. Latsey and Francis G. Lounsbury were working on a special assignment to investigate illegal gaming within the Commonwealth. They obtained employment at the General Dynamics shipyard at Quincy. Dressed in working clothes and working shifts as did all other employees at the plant, they engaged in undercover activity. On January 30, 1967, Officer Lounsbury asked the defendant, an employee at the plant, if he would take a bet on some horses in a 'daily double' and on number '451 six ways.' The defendant assented and accepted from the officer the sum of $1 for the horse bet and $1.50 for the number bet. He wrote the number and the 'daily double' bet on a pad which he took from his breast pocket. On January 31, and February 2, 1967, Officer Lounsbury again placed two similar bets with the defendant in tne building known as the Steel Mill of the General Dynamics Shipyard. The January 31 bet was made by giving the defendant a piece of paper on which Officer Latsey had written the names of two horses. Officer Latsey witnessed the transactions on both occasions.

On March 10, 1067, the two officers went to the District Court of East Norfolk at Quincy where Officer Lounsbury signed a complaint charging the defendant with 'being found in a building known as Steel Mill of General Dynamics Corporation, with apparatus for registering bets upon the result of a trial of speed of certain bests, to wit: horses, on the second day of February, 1967.' The bill of exceptions contains no other language of the complaint or any evidence of the procedures leading to its issuance. The court then issued a warrant for the arrest 'of John Doe, also known as 'Baldi' and Baldassini a white male, between 50 and 55 yrs. of age, 5 8 , 170--180 pounds, and dark hair, of said Quincy in said County of Norfolk, if he be found within your precinct, to answer to the Commonwealth, on complaint of Francis G. Lounsbury of Boston, this day made on oath, before said Court for * * * (a crime described in the same language as that quoted above from the complaint of March 10, 1967).' The officers executed this warrant by arresting the defendant, Louis Baldassini, on March 13, 1967, at the General Dynamics Corporation plant.

Upon his arrest, the defendant was searched. Currency in the sum of.$460.60, six slips of paper with writings or writings and numerals thereon, and a pad of paper approximately three inches by six inches in size with several sheets of carbon paper, were taken from him. These items are the subject of the motion to suppress, and except for the currency they will be referred to collectively as the 'gaming apparatus.' G.L. c. 271, § 17. Commonwealth v. Demogenes, 349 Mass. 585, 587--588, 211 N.E.2d 226. After finding this gaming apparatus, the officers returned to the District Court in Quincy where they made two additional complaints against him for the offences charged in the indictments which are before us. The indictments were returned by the grand jury on June 9, 1967. On June 21, 1967, the complaints were dismissed in the District Court without the defendant being present. We assume that this dismissal covered the complaint of March 10, 1967, as well as the two complaints of March 13, 1967.

On June 19, 1967, the defendant seasonably filed a motion in the Superior Court alleging that the warrant for his arrest issued by the District Court on March 10,, 1967, was 'void and illegal' and asking that all items taken from his person at the time of his arrest pursuant to that warrant be suppressed. In an affidavit filed with the motion, the defendant quoted the part of the warrant which describes the person to be arrested and then added that 'said warrant did not indicate clearly on whom it was to be served by stating his occupation, the place of his residence, personal peculiarities by which he could be identified, and was defective and void on its face,' and that 'the officer serving the warrant in legal effect acted without a warrant and was a trespasser.' No other ground or basis is stated for the motion to suppress.

The alleged insufficiency of the warrant's description of the person to be arrested has not been argued by the defendant in his brief or orally before this court, although it was the sole ground of the motion to suppress filed on June 19, 1967. Instead the defendant's brief argues that the 'warrant is invalid since it was not based upon probable cause' and that '(t)herefore the arrest was illegal and the items taken pursuant to the arrest should have been suppressed.' The defendant has given no explanation in his brief or oral argument for this difference between the ground for the motion to suppress filed on June 19, 1967, and quoted in the bill of exceptions, and this other ground now urged before this court. We might avoid passing on either contention by holding (a) that the ground stated in the record has been waived by the failure of the defendant to argue it in his brief, see S.J.C. Rule 1:13, 351 Mass. 738, and (b) that the ground argued by the defendant in his brief is not open to him because he cannot raise a question of law for the first time in a brief filed in this court. Commonwealth v. Skalberg, 333 Mass. 255, 256, 130 N.E.2d 684. However, we prefer to comment on both grounds briefly.

1. We assume for the purpose of this discussion that the complaint of March 10, 1967, and the warrant issued pursuant thereto employ the same language in describing the defendant and the person to be arrested as 'John Doe, also known as 'Baldi' and Baldassini a white male, between 50 and 55 yrs. of age, 5 8 , 170--180 pounds, and dark hair, of said Quincy.' Such a description complies with the requirements of G.L. c. 277, § 19, which provides in part: 'If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown.' In Commonwealth v. Gedzium, 259 Mass. 453, 456--462, 156 N.E. 890, this statute permitting 'John Doe' indictments was held constitutional. Since c. 277, § 79, makes § 19 applicable to complaints, we are of opinion that a 'John Doe' complaint is likewise constitutional. And here the descriptions of the accused in the complaint and the warrant are considerably more detailed than that minimum permitted by the statutes. See Commonwealth v. Capland, 254 Mass. 556, 150 N.E. 869, and Commonwealth v. Doherty, 353 Mass. 197, 205--207, 229 N.E.2d 267.

2. The argument that the arrest warrant for the offence of February 2, 1967, was invalid because 'not based upon probable cause' depends on facts which the defendant did not incorporate in his bill of exceptions. On the record before us, we refuse to conclude that the complaint was issued without the establishment of probable cause supported by oath or affirmation as required by art. 14 of the Declaration of Rights of the Massachusetts Constitution and by G.L. c. 276, § 22. ¹ The presumption of regularity must prevail over a deficient or incomplete record for whose preparation the defendant is responsible. In support of his argument that an arrest warrant must be based on 'probable cause' the defendant relies principally on the opinion in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. That opinion holds first at 485--486, 78 S.Ct. at 1250, that '(t)he language of the Fourth Amendment (to the Constitution, of the United States), that '* * * no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * * the persons or things to be seized * * *,' of course applies to arrest as well as to search warrants.' This requirement is no different from that of art. 14 of the Declaration of Rights. The opinion then holds that for an arrest warrant issued on a complaint to be valid, the complaint ² must show that 'there is probable cause to believe that an offense has been committed and that the defendant has committed it.' The defendant argues that this requirement applies to the complaint in this case. We do not agree. The holding of the Giordenello case that the complaint must itself show probable cause was based on express provisions of Rules 3 and 4 of the Federal Rules of Criminal Procedure for the District Courts of the United States. ³ Those rules do not regulate the form or content of criminal complaints in this Commonwealth. While both the United States and Massachusetts Constitutions require that arrest warrants be founded upon probable cause supported by oath or affirmation, neither Constitution requires that the facts constituting probable cause be recited in or be made a part of the complaint on which the...