Com. v. Fiore

• Decision Date: 24 April 1980
• Citation: 403 N.E.2d 953,9 Mass.App.Ct. 618
• Parties: COMMONWEALTH v. Richard FIORE.
• Court: Appeals Court of Massachusetts

Page 953

403 N.E.2d 953

9 Mass.App.Ct. 618

COMMONWEALTH v. Richard FIORE.

Appeals Court of Massachusetts, Hampden.

Argued May 21, 1979.

Decided April 24, 1980.

Willie J. Davis, Boston, for defendant.

John T. McDonough, Asst. Dist. Atty., for the Commonwealth.

Before GOODMAN, ROSE and GREANEY, JJ.

GOODMAN, Justice.

The defendant appeals (G.L. c. 278, §§ 33A-33G) from convictions on six indictments charging possession of controlled substances with intent to distribute. He assigns as error and argues in the following order (1) the denial of his motion to suppress evidence which, he contends, resulted from an illegal search and seizure; (2) the trial judge's refusal to ask certain questions of prospective jurors; (3) the denial of his motions for directed verdicts; and (4) the admission of certain testimony at trial. (Other assignments of error not argued are deemed waived.)

1. Motion to suppress. The following background facts appear primarily from the judge's findings on the motion to suppress, supplemented by the evidence introduced at the hearing on the motion. At about 10:00 P.M., on December 23, 1977, an officer of the East Longmeadow police department (Getty) spoke over the telephone to a State police trooper (Cauley) and told him that he (Getty) had received information "from an informant that there was a possibility of narcotics, guns and a house break at a location near a trailer park, a junk yard and a power line that he thought to be either in the Palmer or Brimfield area." ¹ Later that evening, Cauley, together with members of the State Police and the chief of the Brimfield police department, proceeded "to a vicinity near a power line, near a junk yard" in the town of Brimfield (see note 1, supra ). ² There they came upon a cottage, the outside door of which was torn off. Cauley entered through the doorway and found the inner door to be ajar. He looked to see if anyone was inside but found no one. In the cottage, Cauley noticed a hole in the floor and shone his flashlight into the hole, where he saw and smelled a quantity of hashish. The next day he applied for and received a warrant to search the Brimfield cottage; the police seized cocaine and a large quantity of hashish, various bills, notebooks, papers and miscellaneous paraphernalia. As a result, Cauley then obtained a warrant to search the defendant's East Longmeadow residence; that search resulted in the seizure of more narcotics, as well as keys to the locks on the cellar door of the cottage. ³

The defendant contends that Cauley's observation of the hashish in the Brimfield cottage is the fruit of an illegal entry, and that this is manifest (a) on the face of the affidavit in support of the search warrant (Commonwealth v. Monosson, 351 Mass. 327, 221 N.E.2d 220 (1966)) and (b) from the evidence at the hearing on the motion to suppress. We do not agree.

(a) Cauley's affidavit recites that, as a result of information from Getty concerning a breaking and entering in a dwelling house in Brimfield, Cauley and other officers went to that dwelling house and found that "there had been in fact a break committed there." They "entered the dwelling house . . . to ascertain who the owner was." The affidavit further sets out that while in the cottage Cauley noticed "a quantity of . . . hashish."

It seems clear to us that a house break without more as set out in the affidavit raises the possibility of danger to an occupant and of the continued presence of an intruder and indicates the need to secure the premises. In such circumstances "(t)he right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers." United States v. Barone, 330 F.2d 543, 545 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964); Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); Michigan v. Tyler, 436 U.S. 499, 509-510, 98 S.Ct. 1942, 1950-51, 56 L.Ed.2d 486 (1978); Commonwealth v. Thomas, 358 Mass. 771, 774 n. 2, 267 N.E.2d 489 (1971); Commonwealth v. Kingsbury, --- Mass.App. ---, --- - --- ^a, 385 N.E.2d 1020, id., --- Mass. --- ^b, 393 N.E.2d 391 (1979). See Marshall v. United States, 422 F.2d 185, 187-189 (5th Cir. 1970); United States v. Dunavan, 485 F.2d 201, 204-205 (6th Cir. 1973). The defendant points out, however, that the entrance in this case was stated in the affidavit to be in order "to ascertain who the owner was." We do not read the affidavit so restrictively as to exclude the normal motivations in entering a dwelling when the police discover a break. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). ⁴

(b) The defendant further contends that Cauley's observation of the hashish in the cottage was the fruit of an illegal entry made for the purpose of looking for narcotics, rather than the inadvertent result of the investigation of a breaking and entering. See Commonwealth v. Forde, 367 Mass. 798, 807-808, 329 N.E.2d 717 (1975), citing Wong Sun v. United States, 371 U.S. 471, 484-488, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963); Commonwealth v. Penta, 361 Mass. 894, 895, 282 N.E.2d 674 (1972), and Commonwealth v. Hall, 36(6) Mass. 790, 795, 323 N.E.2d 319 (1975). The issue, otherwise put, is the applicability to Cauley's observation of "(t)he plain view doctrine (which) requires prior police justification for an intrusion in the course of which an officer inadvertently comes across incriminating evidence. The 'prior justification' language is merely another way of articulating the necessity for 'some . . . legitimate reason for being present unconnected with a search directed against (an) accused.' Coolidge v. New Hampshire (403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971))." Commonwealth v. Walker, 370 Mass. 548, 557, 350 N.Ed.2d 678, 686 (1976).

On the record in this case we believe the entry was justified. To be sure, Cauley testified that he came upon the cottage in the course of an investigation of the possibility of narcotics in a house which might have been broken into and that Getty's information, on which he proceeded, came from an informant for whose reliability neither Cauley nor Getty could vouch. ⁵ In view of the uncertainty of the information, the trial judge could, as he did, believe Cauley's testimony that when he came upon the cottage from which the door had been torn, he did not know that this was the cottage to which Getty's informant had referred. From the testimony, Cauley had no physical description of or any other information as to the specific cottage involved; there are "numerous cottages in the area." Cauley was obviously looking for the cottage which he ultimately entered, but it was just happenstance that he went in the direction of that cottage. ⁶ Further, there were tracks in the snow leading to the cottage, and there was an automobile parked in the yard.

In the circumstances the possibility that this was the cottage where narcotics might be found did not cancel out the alternate possibility that someone in the cottage was in need of help or that an intruder was in the dwelling. Cauley was not obliged to treat the cottage as somehow an outlaw without the right to police protection and aid because of the possibility that there might be narcotics in it. That mere possibility did not require him to depart from the normal procedure that "if we came upon a break we go in and ascertain if anybody who had broken in was still inside." Accordingly, the motion to suppress was properly denied.

2. Voir dire of prospective jurors. Of the seventeen questions which defense counsel proposed that the trial judge ask prospective jurors, the judge asked six. In view of the representations of counsel that there had been "a lot of publicity" when the case began a little less than a year previously, the judge agreed to ask defense counsel's proposed question addressed to the possible exposure of the venire to such publicity. ⁷ He thus complied with G.L. c. 234, § 28, as amended through St.1975, c. 335, which requires the examination of prospective jurors "if it appears that, as a result of the . . . possible exposure to potentially prejudicial material . . . the juror may not stand indifferent." We see no reason to interfere with the judgment of the trial judge in refusing to ask additional questions dealing with such general topics as a defendant's right not to testify and the presumption of innocence. The trial judge apparently saw no sufficient relation between whatever "extraneous considerations" the publicity might have engendered and those questions, which arise at every trial and which are, as the trial judge indicated, dealt with in the charge to the jury. The trial judge necessarily has a large measure of discretion to decide just how to frame the questions in applying the statute. See Commonwealth v. Campbell, --- Mass. ---, --- - --- ^c, 393 N.E.2d 820 (1979); Commonwealth v. Jones, --- Mass.App. ---, --- - --- ^d, 399 N.E.2d 1087, further appellate review granted, --- Mass. --- (1980). ^e

3. Motions for directed verdict. Contrary to the defendant's contention, there was sufficient evidence when the defendant moved for a directed verdict at the end of the Commonwealth's case from which the jury could find beyond a reasonable doubt that the defendant...