Com. v. Blow

• Decision Date: 22 June 1972
• Citation: 362 Mass. 196,285 N.E.2d 400
• Parties: COMMONWEALTH v. Carlton J. BLOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 400

285 N.E.2d 400

362 Mass. 196

COMMONWEALTH v. Carlton J. BLOW.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 2, 1972.

Decided June 22, 1972.

Reuben Goodman, Boston (Alexander Whiteside, II, Boston, with him), for defendant.

James P. Donohue, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

TAURO, Chief Justice.

The defendant appeals from convictions on four separate indictments charging him with the robbery of one Pauline R. Lewon; breaking and entering in the nighttime and larceny of the property of one John J. Kapish; breaking and entering in the nighttime and larceny of the property of one Rita M. Raffman; and the possession of burglarious implements. On the first three indictments the defendant was sentenced to concurrent terms of not less than nine nor more than fifteen years, and on the fourth indictment a concurrent term of not less than nine nor more than ten years. All the offences were alleged to have occurred on the same date. The defendant argues that the trial judge erred in denying his motion to suppress on the ground that the evidence was obtained as the result of a search incident to an unlawful arrest. He also argues that he was deprived of his right to a fair trial by the failure of the trial judge to allow his motion to sever with respect to each of the indictments.

1. The validity of the search turns 'upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the . . . (defendant) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142. Commonwealth v. Mitchell, 353 Mass. 426, 428, 233 N.E.2d 205. COMMONWEALTH V. STEVENS, MASS., 283 N.E.2D 673^A.

See Commonwealth v. Breen, 357 Mass. 441, 444, 258 N.E.2d 543.

We summarize the evidence at the pretrial hearing on the issue of probable cause for the arrest. At approximately 5:30 A.M. to 5:40 A.M. on November 7, 1969, Officer Hurley went to the home of John Kapish where he was informed that the house had been broken into. Officer Hurley testified that Kapish described the intruder as small, approximately five to five feet three, wearing dark clothing and 'had a flashlight that had a red tip to it.' Neither Kapish nor his mother, who also witnessed the intruder, was able to furnish any additional description. Officer Hurley left the house at approximately 5:50 A.M. and then proceeded in his police cruiser down Mill Street. About a quarter of a mile from the Kapish house, he spotted the defendant riding on a bicycle in the same lane. He testified that as he 'proceeded along side of . . . (the defendant), protruding from his left pocket was this flashlight with the red . . . (tip). He had gloves which would have been in his right pocket. There was a screw driver, and also this article in his left pocket. . . . He had on a pullover type jersey with a pocket on the front. These were protruding out . . . (the) side.' The defendant was also wearing dark pants and a khaki colored raincoat was draped over the front of the bicycle. Officer Hurley further testified that he 'signaled' and 'tried to get . . . (the defendant's) attention. When he looked over and he saw me I went on to bring my vehicle to a halt. At this time he stepped from the bicycle and threw . . . (it) to the ground . . . and he started off on foot.' He was apprehended within thirty feet. The defendant was immediately informed that he was 'under arrest for possession of burglarious tools at this time.' The defendant was brought back to the cruiser where he was informed of his constitutional rights, again notified that he was arrested for possession of burglarious tools, and searched. The search revealed a bottle of pills, two rings, a watch, $178 or $179 in bills and change, a jackknife and another screwdriver.

Officer Hurley testified that before arresting the defendant he heard a police broadcast at approximately 4:30 A.M. concerning the robbery of Mrs. Lewon which described the suspect as 'a party who was short in size, who had on a green khaki type jacket, and possibly on a bicycle.' Officer Purcell, who investigated the robbery of Mrs. Lewon, did not mention the bicycle in the assignment slip he turned in. He did, however, testify that he told the dispatcher that 'the assailant may possibly be on a bicycle.' The suspect was described as a man five feet eight, white, heavy build, dark short hair, straight cut, and wearing a waist length khaki jacket and tan trousers.

In these circumstances we believe that there was probable cause to arrest the defendant for possession of burglarious tools. Officer Hurley saw the defendant riding on a bicycle, and on closer examination saw him in possession of a flashlight with a red tip and other implements useful in a housebreak. He had just concluded the investigation of a housebreak in which an intruder was seen with a similar flashlight and he also knew that the suspect involved in the robbery of Mrs. Lewon might possibly be on a bicycle. These circumstances when combined with the defendant's attempted flight are sufficient to establish probable cause. Cf. Commonwealth v. Brown, 354 Mass. 337, 348, 237 N.E.2d 53. See Sibron v. New York, 392 U.S. 40, 66--67, 88 S.Ct. 1889, 20 L.Ed.2d 917.

2. The general rule is that the question whether the defendant's 'or the Commonwealth's substantial rights will be prejudiced by consolidation or severance for trial rests in the sound discretion of the judge.' Commonwealth v. Iannello, 344 Mass. 723, 727, 184 N.E.2d 364, 367; Commonwealth v. Fancy, 349 Mass. 196, 204, 207 N.E.2d 276. This court has delineated certain guidelines. 'No sound reason can be given why several indictments charging different crimes arising out of a single chain of circumstances should not be tried together. Where several offenses might have been joined in one indictment, and would be proved by substantially the...