Com. v. Fudge

• Decision Date: 16 July 1985
• Citation: 481 N.E.2d 199,20 Mass.App.Ct. 382
• Parties: COMMONWEALTH v. Arthur J. FUDGE.
• Court: Appeals Court of Massachusetts

Page 199

481 N.E.2d 199

20 Mass.App.Ct. 382

COMMONWEALTH v. Arthur J. FUDGE.

Appeals Court of Massachusetts Berkshire.

Argued Feb. 12, 1985.

Decided July 16, 1985.

Bruce Ferg, Committee for Public Counsel Services, Brockton, for defendant.

Clyde R.W. Garrigan, Asst. Dist. Atty., for Commonwealth.

Before DREBEN, KAPLAN and WARNER, JJ.

WARNER, Justice.

The defendant appeals from his conviction by a District Court jury of six on a complaint charging him with receiving stolen property. G.L. c. 266, § 60. He assigns as error (1) the judge's refusal, because his counsel failed to submit a supporting memorandum pursuant to Mass.R.Crim.P. 13(a)(4), 378 Mass. 872 (1979), and a complete copy of the affidavit in support of the issuance of a search warrant, to grant a hearing on the merits of his motion to suppress evidence, (2) the judge's failure to comply with Mass.R.Crim.P. 20(b)(1), 378 Mass. 889 (1979), in his examination of prospective jurors, and (3) the admission in evidence of a written list of certain allegedly stolen items prepared by a State police officer. The defendant further argues that he was denied the effective assistance of trial counsel ¹ because of the latter's inattention to Mass.R.Crim.P. 13(a)(4) and 20(b)(1). We affirm.

We first summarize the evidence necessary for background to consideration of the defendant's claims. On the weekend of May 15, 1982, the Stephentown, New York, home of Peter and Jean Muncey was broken into, and several items belonging to the Munceys and a person who shared the home with them, Patricia Stewart, were stolen. That same weekend, the defendant was in possession of a U-Haul rental truck in the New York- Massachusetts-Vermont area. On June 8, 1982, having arrived in a U-Haul truck, the defendant rented an empty room from a storage facility in Cheshire, Massachusetts. During the period between June 8 and June 16, 1982, the defendant visited the storage room several times, sometimes unloading things, at least once from a U-Haul truck.

On June 17, 1982, upon information obtained from a New York State police investigator, Trooper Richard Smith of the Massachusetts State police obtained a search warrant for the storage room rented by the defendant. The warrant specified twenty-seven stolen items; a search of the room yielded fifteen of those items. None of those items was introduced at trial. The police also seized several other articles marked with price tags and of a nature consistent with those identified in the warrant. Some of those other articles, including a spinning wheel, paintings, dishware, a mirror and a manicure set, were subsequently identified as having been stolen (without the price tags) from the Muncey home and were introduced in evidence at trial.

1. The motion to suppress. On March 9, 1983, two days before the scheduled trial date, the defendant's counsel filed a motion to suppress the evidence seized in the search of the storage room, ² with a request for leave to file the motion late. In support of the motion, counsel submitted an affidavit as required by Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979), ³ but no memorandum of law. See rule 13(a)(4). ⁴ In her affidavit, counsel referred to a copy of the affidavit in support of the issuance of the search warrant as an exhibit, but a complete copy of that affidavit was not attached.

On March 11, 1983, prior to the commencement of trial, counsel asked to be heard on the motion to suppress. When the judge indicated that there was no supporting memorandum of law, counsel stated that she was unaware of rule 13(a)(4) but was prepared to argue the motion orally. The judge then noted the absence in the attachments to the motion of a complete copy of the affidavit in support of the search warrant. The judge stated that because of these deficiencies he considered the motion waived, and, when pressed by counsel, expressly denied the motion. ⁵

The defendant does not argue that the search warrant was invalid. Rather, he says that since the items introduced in evidence were not listed in the warrant they were the products of a warrantless search. Massachusetts R.Crim.P. 13(a)(4) does not require that a memorandum of law be filed simultaneously with a motion to suppress such evidence. We think rule 13(a)(4) was meant to place on the defendant the obligation of simultaneously filing a memorandum of law with a motion to suppress evidence only when the defendant has the burden of proof on the question. Thus, on a challenge to evidence seized pursuant to a search warrant, where the burden of proof is on the defendant, see Commonwealth v. Fancy, 349 Mass. 196, 202-203, 207 N.E.2d 276 (1965); Commonwealth v. Antobenedetto, 366 Mass. 51, 56-57, 315 N.E.2d 530 (1974), a defendant's memorandum is required. Where, however, the search and seizure are conducted outside of the scope of a valid warrant, as in the case of warrantless searches, they are presumed to be unreasonable and "the burden is on the Commonwealth to show that the search or seizure falls within a narrow class of permissible exceptions." Commonwealth v. Rodriguez, 378 Mass. 296, 303, 391 N.E.2d 889 (1979). See Commonwealth v. Antobenedetto, supra. Cf. Commonwealth v. Bond, 375 Mass. 201, 210, 375 N.E.2d 1214 (1978). We hold that a defendant's memorandum under the second sentence of rule 13(a)(4) cannot be required with respect to such a search and seizure ⁶, and the denial of this defendant's motion to suppress on that ground was error.

A second ground of denial of the motion invoked by the judge was the defendant's counsel's failure to attach to the motion a complete copy of the affidavit in support of the issuance of the search warrant. Missing, it is alleged, was the statement of the affiant in support of probable cause to issue the warrant. In the circumstances, the omission was inconsequential. The motion was inartfully drawn. ⁷ However, attached to the motion was an affidavit of counsel which made clear that the basis of the motion was the claim that the search and seizure were outside the scope of the warrant. Attached also were that part of the warrant which described the property which the Commonwealth was authorized to seize, and the inventory, filed with the return of the warrant, showing the property in fact seized. The defendant's counsel also made clear the basis of her motion in the hearing on whether the judge would consider the motion on its merits. The defendant complied with the requirements of Mass.R.Crim.P. 13(a)(2), and the judge abused his discretion in denying the motion on the ground of failure to include a complete copy of the affidavit filed in support of the issuance of the warrant. Contrast Commonwealth v. Bongarzone, 390 Mass. 326, 337, 455 N.E.2d 1183 (1983); Commonwealth v. Pope, 392 Mass. 493, 501, 467 N.E.2d (1984); Commonwealth v. Pope, 15 Mass.App.Ct. 505, 507, 446 N.E.2d 741 (1983).

We conclude, however, that the error in the denial of the motion to suppress was harmless beyond a reasonable doubt. In executing the search warrant the police seized fifteen of the twenty-seven items described in the warrant as having been stolen from the residence of one Walter Keyes in Salem, New York. ⁸ In plain view in the storage room were many other articles of a kind similar to those described in the warrant. The police seized the entire contents of the room. At trial the Commonwealth introduced in evidence thirteen of the items not specified in the warrant, over half of which bore price tags and all of which were similar in kind to those described in the warrant. We think that the Commonwealth's evidence was sufficient to establish that at the time of the search the police had probable cause to believe that those articles introduced in evidence were stolen and, therefore, that their seizure was lawful. See Commonwealth v. DeMasi, 362 Mass. 53, 58, 283 N.E.2d 845 (1972); Commonwealth v. Bond, 375 Mass. at 206-210, 375 N.E.2d 1214; Commonwealth v. Rodriguez, 378 Mass. at 303, 391 N.E.2d 889. Contrast Commonwealth v. Wojcik, 358 Mass. 623, 628-629, 266 N.E.2d 645 (1971).

2. The examination of jurors. After the venire were sworn, the judge generically described the charge against the defendant and introduced counsel and the witnesses, including the defendant. He asked all to stand and face the prospective jurors "in order that they may recognize you in the event that they may have some knowledge of you." Thereupon, the judge said: "If the jurors have any reason that you can think of at this time which [sic] you should not serve on this particular jury, would you kindly raise your hands." There was no response. The judge made no specific inquiry of the venire as to relationship, interest, opinion, bias or prejudice, as required by Mass.R.Crim.P. 20(b)(1), 378 Mass. 889 (1979). ⁹ Empanelling followed; two jurors were excused after a bench conference and apparently on challenges by the Commonwealth. The defendant did not request that the judge examine the jurors on the subjects set forth in rule 20(b)(1). Nor did the defendant make any causal or peremptory ¹⁰ challenge to any juror seated. Indeed, it is apparent from the context of the transcript of the electronic recording of the proceedings (the statement of counsel for the defendant being reported as "inaudible") that defendant's counsel stated that she was content with the jury as selected.

The defendant argues for the first time on appeal that the failure of the judge to make inquiry of the prospective jurors in accordance with rule 20(b)(1) had the practical effect of depriving the defendant of causal and peremptory challenges. The result, the defendant says, was the denial of his guarantee, under both the United States and the Massachusetts Constitutions, of the right to a trial by an impartial jury. See Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995 (1985). The defendant makes no specific challenge to the competency of any juror, nor could he absent a...