Com. v. Bennett

• Decision Date: 11 February 1993
• Citation: 607 N.E.2d 408,414 Mass. 269
• Parties: COMMONWEALTH v. William BENNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 408

607 N.E.2d 408

414 Mass. 269

COMMONWEALTH v. William BENNETT.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Dec. 7, 1992.

Decided Feb. 11, 1993.

Dana A. Curhan, Boston, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for the Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

The defendant, who was convicted in October, 1990, of an armed robbery in Brookline (and on three indictments charging assault by means of a dangerous weapon), appeals from the trial judge's denial, without a hearing, of the defendant's motion for a new trial. ¹ That motion, based on a claim that he was denied his constitutional right to the effective assistance of counsel, alleges that his trial counsel should have, but did not, move to suppress evidence obtained during two searches of the defendant's premises in Boston, each conducted pursuant to a search warrant.

The defendant argues that his trial counsel should have challenged the reasonableness of the first search, conducted on November 10, 1989, on the ground that the affidavit in support of the warrant for that search contained false statements by a Boston police officer. The defendant also argues that his counsel should have challenged the second search, conducted on November 15, 1989, principally on the ground that information set forth in the application for the second search warrant was obtained by the affiant, a Brookline police officer, during the allegedly unconstitutional first search. ² We granted the defendant's application for direct appellate review and now affirm the judge's order denying the defendant's motion for a new trial.

On October 2, 1989, a man robbed a video movie store on Boylston Street in Brookline. A part-owner of the store and other witnesses saw the robber, who kept his hand in a reddish or burnt orange leather bag which he banged on the glass counter top. The robber was wearing a maroon or red baseball hat. Witnesses testified that a hat introduced as an exhibit at trial was the hat or similar to the hat that the robber had worn. The Brookline police officer who conducted the second search of the defendant's premises testified at trial that he had seen a burnt orange leather bag and a red baseball cap in the defendant's apartment during the first search and that he had seized the hat during the second search.

The question is whether the trial judge erroneously rejected the defendant's claim that his trial counsel was ineffective, in a constitutional sense, when he failed to move to suppress evidence of the leather bag, seen during the first search, and the baseball cap, seen during the first search and seized during the second. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We rule that the defendant has failed to present a basis for concluding that his trial counsel acted unreasonably in failing to move to suppress that evidence or that, if he had filed such a motion, he would have accomplished something material for the defense. See Commonwealth v. Fanelli, 412 Mass. 497, 503, 590 N.E.2d 186 (1992).

The trial judge rejected the defendant's claim on the ground that the Brookline police officer, who had accompanied the Boston police on the first search and had obtained the second search warrant, was not connected with whatever taint may exist in the granting of the first search warrant. Certainly there is a question whether the exclusionary rule should apply to evidence obtained during a search by the Brookline police officer that was authorized on the basis of information that he had obtained during an earlier search which was allegedly tainted by a warrant issued on the false statements of a Boston police officer. There is no claim that the application for the second search warrant contained any false statement. The absence of any such false statement alone perhaps would have reasonably discouraged trial counsel from pursuing a motion to suppress. We decline, however, to rest our conclusion on the ground on which the trial judge relied but reach the same result for a different reason. See Aetna Casualty & Sur. Co. v. Continental Casualty Co., 413 Mass. 730, 734, 604 N.E.2d 30 (1992). We decline to rely on the trial judge's reasoning because the Brookline police officer obtained the evidence concerning the leather bag during the first search, the one that is allegedly tainted. Moreover, the record does not show why the Brookline police officer accompanied the Boston police officers in the execution of the first search warrant involving an unrelated crime. ...