Com. v. Corradino

• Citation: 332 N.E.2d 907,368 Mass. 411
• Parties: COMMONWEALTH v. Michael B. CORRADINO (and a companion case 1 ).
• Decision Date: 30 July 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 907

332 N.E.2d 907

368 Mass. 411

COMMONWEALTH

v. Michael B. CORRADINO (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1975.

Decided July 30, 1975.

Harvey Brower, Boston, for defendants.

Thomas E. Dwyer, Jr., Special Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO and KAPLAN, JJ.

KAPLAN, Justice.

On May 7, 1973, the body of Michael J. Barry was found at Carter Street in Chelsea. He had been shot twice in the head. Five months later a Suffolk County grand jury indicted Michael B. Corradino and Alfred Abate, Jr., the former for the murder in the first degree of Barry, the latter as being accessory after the fact to the murder.

Trial of the defendants jointly, subject to G.L. c. 278, §§ 33A--33G, resulted in Corradino's being found guilty of murder in the second degree and Abate guilty as charged of being accessory after the fact. ²

On this appeal, each defendant urges four grounds for reversal: denial of a pre-trial motion to suppress evidence seized during a search, under warrant, of the premises where the murder was alleged to have occurred; denial of a motion to sever the trials under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); refusal to question the jurors as to whether they had discussed the case among themselves following an incident in the court house; and denial of a motion for a new trial based on the Commonwealth's failure to produce the complete prior criminal record of its key witness, one Carmino Robert Palermo, and also on the claimed availability of two new witnesses who could testify to the defendants' innocence. Exceptions on these points were taken and errors assigned. ³

1. The defendants do not challenge the sufficiency of the evidence to support the

verdicts if the evidence seized under warrant was admissible, and so we turn at once to the judge's denial of the motion to suppress. In question here is only the sufficiency of the sworn application for the warrant, since the affidavits of the defendants offered at the pre-trial hearing neither contradicted the application nor suggested that the search was beyond the scope of the warrant, and the examination by the defense of Lieutenant Keating of the Chelsea police, who applied for the warrant and was the only witness called at the hearing, failed absolutely to shake any assertion in the application.

The Keating application is quite detailed and recounts the following. On Sunday, May 6, at 3 P.M., the police received an anonymous telephone call that a shooting had taken place 'in' a bar known as Dorothy's cafe . (This occupies the ground floor of a two-story building at 94--98 Park Street, Chelsea; the upstairs is reached by a separate street entrance.) Cruiser officers responded to the call and entered the bar but reported no evidence of a shooting.

Barry's body was found the following day at 6:25 A.M. Barry had been recently released after serving a sentence for armed robbery. He had a long criminal record. Lieutenant Keating knew of a link between Barry and Corradino: on April 24, Keating had arrested Corradino for unlawful possession of a revolver and found among Corradino's papers a parking ticket for a vehicle registered to Barry. Keating also knew Corradino as a daily visitor to Dorothy's Cafe . The police had long suspected that unlawful card games took place regularly on the second floor of the building housing that cafe. ⁴

On Monday the police acquired further information. From Shirley Mann, Barry's girl friend, they learned that Barry was a frequent participant, with Corradino, Abate, Lenny Senibaldi, and others, in the illegal card games at the upstairs room above Dorothy's. Miss Mann had accompanied Barry to these games on several occasions and learned that Corradino was the 'operator' of the games. She said she knew that Barry had been involved in several 'bad' arguments with Corradino and Abate concerning their cheating at cards: the most recent incident was on May 4, which Barry related to her; another, about a month before, between Barry and Corradino, she had herself witnessed. Miss Mann also told the police that Barry had told her he would be playing cards after 2 A.M. on May 6. ⁵

The Park Street premises were rented by (among others) Francine Corradino, whose address was the same as that of Michael Corradino.

Lieutenant Keating and other police on Monday afternoon observed Corradino in a car driven by Lenny Senibaldi parked at the intersection of Carter Street and Everett Avenue. The car proceeded to the rear of Dorothy's Cafe and parked there. When Senibaldi and Corradino observed Keating's cruiser coming up behind them they immediately drove off.

Abate and one Sheila Ciaramello were seen by the police on Monday afternoon coming out of the street doorway leading upstairs carrying a mop and yellow pail.

In his application Monday evening, Lieutenant Keating sought a warrant for the premises 94--98 Park Street, upstairs and downstairs, to search there for a small-caliber firearm and ammunition, bloodstained clothing or other paraphernalia, a blood-stained mop, and a yellow pail. A warrant issued and search was made forthwith with the telling results to be mentioned at point 2 below.

Because the evidence was seized during a search authorized by warrant, the defendants had the burden of proof on the motion to suppress. Commonwealth v. Fancy, 349 Mass. 196, 202, 207 N.E.2d 276 (1965); Commonwealth v. Antobenedetto, --- Mass. ---, ---, ^a 315 N.E.2d 530 (1974). Part of that burden was to show 'standing' to make the challenge by demonstrating a possessory interest in the premises searched or the property seized, see Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), a reasonable expectation of freedom from governmental intrusion, see Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Macusi v. DeForte, 392 U.S. 364, 368--369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), or 'presence' at the scene at the time of search. See Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). ⁶ The judge shortcut his consideration of the motions by finding that neither defendant had established standing; he thought it unnecessary to pass on the existence of probable cause for issuance of the warrant, the issue on which the hearing had centered. As to Abate, the judge's conclusion appears correct, for nothing was adduced on that point in the defendants' affidavits, the application for the warrant, or the testimony at the hearing. As to Corradino, there is more question. The application refers to Corradino as the 'operator' of the card games, there is the statement about the rental of the premises, and Corradino's affidavit says that he was at Dorothy's Cafe when the search was conducted.

However, we need not pursue the matter of standing to the end, for we believe that the denial of both motions is supported on the plainer ground that the defendants failed to carry their burden of showing that probable cause did not exist. There is no question of witness credibility as to which the trail judge's view would be significant, and we may appraise the documents ourselves. It is not a question of the weight of any one item in the application, but the weight of the congeries of items, and we are to recall that the probable cause requirement 'by its very terms recognize the vast difference between proof of guilt beyond a reasonable doubt on the one hand and proof of probable cause to believe a fact or facts on the other hand.' Commonwealth v. Stewart, 358 Mass. 747, 749, 267 N.E.2d 213, 214 (1971). We may add that, if the police are to be encouraged to use the warrant procedure, it seems good policy to allow a certain leeway or leniency in the after-the-fact review of the sufficiency of applications for warrants. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Here the ill feeling between Corradino and Barry, the likelihood that Barry was playing cards in the room above Dorthy's with Corradino the day before his body was found, the tip about a shooting at the premises, all appearing from the application, provided the necessary 'objective or concrete, substantial basis,' see Commonwealth v. Pellier, --- Mass. ---, ---, ^b 289 N.E.2d 892 (1972), for the belief that the murder of Barry was committed during an illegal card game at 94--98 Park Street on May 6, and that some evidence of the crime might be found at that place. Moreover, the observation of Abate and Miss Ciaramello with mop and pail gave cause to believe that there was a danger of the removal or elimination of that evidence.

2. For purposes of the later points in this opinion we give some idea of the evidence presented at the lengthy trial that could have been credited by the jury.

In the upstairs area above Dorothy' Cafe there was a second bar room, part of which was partitioned off as a card room. The upstairs was operated on weekend evenings as an 'after hours place' with liquor served and card games running from 2 A.M. until 6 or 7 A.M. or later. The defendants Corradino and Abate were both dealers in the card games and Abate in addition tended bar.

Shirley Mann, describing the incident she had witnessed a month before the murder, said Barry angrily accused Corradino of cheating, and threw chips at him when the accusation was denied; a fight was avoided only when others at the table separated the two.

It is left unclear when Michael Barry arrived upstairs on the morning of May 6, but he was present by 4 or 5 A.M. Earlier he had been at other bars where he had had several drinks.

Carmino Robert Palermo testified as an eyewitness to the shooting of Barry, alleged in the bill of particulars to have occurred in the card room 'at or around 6--7 A.M.' ⁷ Carmino was not a patron at the after hours club but a sixty-seven year old...