Com. v. Jones

• Decision Date: 07 January 1969
• Citation: 243 N.E.2d 172,355 Mass. 170
• Parties: , 33 A.L.R.3d 788 COMMONWEALTH v. James R. JONES (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 172

243 N.E.2d 172

355 Mass. 170, 33 A.L.R.3d 788

COMMONWEALTH v. James R. JONES (and a companion case).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1968.

Decided Jan. 7, 1969.

Ruben Goodman, Boston, for defendants.

John C. Mahoney, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

In these cases two defendants appeal undger G.L. c. 278, §§ 33A--33G, from convictions for breaking and entering a dwelling house in the nighttime with intent to steal, and for possession of burglarious implements. The defendant Ronald G. Surette also appeals from his conviction for unlawfully carrying a revolver under his control in an automobile. We state the facts as the jury could have found them from the reported testimony.

On the evening of April 17, 1967, about 8 P.M., as a result of a telephone call to the Boston Police Department, three police officers (Daniel Fallon and John Diggins of the Boston Police and Conrad Lessard of the Dedham Police) drove to the vicinity of 37 Clare Avenue in the Roslindale section of Boston in an unmarked Dedham police car.

The three police officers, as they were arriving at the scene, saw the defendants coming from the front door of the house at 37 Clare Avenue, and proceeding toward an automobile about fifty feet away. Surette entered the automobile and Jones, after hesitation, walked past it along Clare Avenue.

The police car pulled up beside the automobile, the officers got out, Officer Fallon asked Surette for the registration (which showed Surette as the owner), and the other two officers ran to the house at No. 37. Returning to the police car, these officers spoke with Officer Fallon whereupon Surette was arrested and placed in the police car.

The three officers, within less than half a minute thereafter, drove in the police car to overtake Jones. Officer Diggins asked Jones where he was going. He replied that he was going home 'from the Forest Hills MTA Station.' That was about 'two or three miles' from 37 Clare Avenue. There was a bus route serving the area. Officer Diggins arrested Jones. A search of his person revealed a pair of gloves in a side pocket. Jones was placed in the police car which was then driven back to 37 Clare Avenue. The officers called for a Boston police car which arrived promptly. The defendant were transferred to it.

Surette's automobile was then searched. This was about five minutes after the arrest. A pair of gloves, a screwdriver, and a kitchen knife were found 'on the floor in the front, the driver's side'; the gloves and the screwdriver were introduced in evidence. The police also took the car keys from the ignition, unlocked the trunk, and found an unloaded revolver in a paper bag inside a suitcase. The revolver was also introduced in evidence. When the car was searched the defendants were in the Boston police car which was beside Surette's car about five feet away.

The owner of the house returned to the house about 8:20 P.M. He had left it about half an hour before with the side or 'rear' door (leading into the kitchen) locked, the porch door (giving access to the side door) shut, and a dim light in the kitchen. Upon his return he found all the lights on in the front hall and kitchen, the 'back (side) door into the kitchen' open, and the front door open and unlocked. ¹ A pane of glass in the side door just above the lock was broken, but everything, inside the house was as he had left it and nothing was missing. No 'jimmy marks' or fingerprints were found at the house.

The defendants were sentenced to serve prison terms for breaking and entering. They were also sentenced to serve shorter terms for possession of burglarious implements. Surette was sentenced to serve a prison term for unlawfully carrying a firearm. The sentences as to each defendant were to be served concurrently with a sentence then being served.

1. The search was at the time of the arrest and was valid without a warrant. It was reasonable in the circumstances. Commonwealth v. Smith,353 Mass. 442, 446--448, 232 N.E.2d 917, 920. ('There was nothing remote in the time or place of this search * * * (which followed) immediately upon a legal arrest * * * for the purpose of discovery of the fruits of or means employed in the crime'). See Commonwealth v. Blackburn, Mass., 237 N.E.2d 35. ^a Compare Commonwealth v. McCleery, 345 Mass. 151, 153--154, 186 N.E.2d 469 (search, after stopping the defendant's automobile for a minor violation, unrelated to a ground for arrest).

The defendants rely on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. The possible application of that case to a search of an automobile contemporaneous with an arrest for burglary was carefully considered and rejected in the Smith case with a review of other holdings of the Supreme Court of the United States. We note also the references to the Preston case in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (car impounded as evidence in a State law narcotics violation could be searched without a warrant a week after the arrest). Both the majority and dissenting opinions in the Cooper case, 386 U.S. at 59--60, 65, 87 S.Ct. 788, reaffirm the reasonableness of a search incident to an arrest. The justification for such a search stated in the Preston case, 376 U.S. at 368, 84 S.Ct. 881 (that before the men are under arrest and the car in custody, the car could be moved out of the jurisdiction) does not, in our view, exclude other justification such as is noted in the Smith case, supra. See Agnello v. United States, 269 U.S. 20, 30--31, 46 S.Ct. 4, 70 L.Ed. 145. The Preston case, where the arrest was for vagrancy and the delayed search was unrelated to the ground of arrest, is, we think (apart from the delay in time), like our McCleery case, supra, and unlike this case where the police had reasonable cause to believe that they had caught the defendants in a burglary just before their attempted escape in the searched car.

The search of the locked trunk and the suitcase within it was warranted by an apparent burglary and a reasonable basis for believing that means used in or fruits of the crime might be stowed there. See for discussion of the limits of a search incident to an arrest the Agnello case, supra; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Ker v. California, 374 U.S. 23, 41--43, 83 S.Ct. 1623, 10 L.Ed.2d 726; Stoner v. California, 376 U.S. 483, 486--488, 84 S.Ct. 889, 11 L.Ed.2d 856.

2. Jones saved an exception to the introduction of the revolver in evidence. There was no error. Included in the indictments under which he was being tried is No. 29401 for illegal possession of a firearm. It was plain from the prosecutor's opening statement that the only firearm to which this indictment related was the revolver found in the trunk. We assume the Commonwealth hoped that the evidence would permit the contention that it was constructively in the possession of Jones. The gun when offered was, in the judge's discretion, admissible under indictment No. 29401. At the close of the Commonwealth's case Jones's motion for a directed verdict of not guilty under that indictment was allowed. Jones did not ask for an instruction that neither the revolver nor Surette's possession of it was evidence against him under the other indictments. There is, in any event, little basis for assuming that the jury, after the direction of the verdict, would have thought that the gun had any relevance to the other indictments against Jones. The revolver was unrelated to the strong, direct evidence warranting the conclusion that Jones and Surette had broken into the house and, if that evidence by itself was not convincing, the evidence of the gun was not likely to make it seem so.

3. Jones shows no error in respect of the testimony of Charles Stutzman. He was a parole officer although this was not stated to the jury. His testimony was that in February or March, 1967, Jones had telephoned him and said he was James Simmons, but Stutzman recognized Jones from his voice. Jones was 'quite upset' and said he had been approached in Boston and asked for his identification and that he had given it. As a result of the conversation Stutzman went to see Jones at his home about March 10 and talked with him about twenty minutes. Stutzman asked Jones who was with him when he had been stopped and Jones said that it was Ronald Surette and that was why he had been so upset and had called Stutzman. He asked for advice and Stutzman told him 'to stay away from Ronald.'

After Stutzman's testimony had been given without objection to the parts set out above, two questions were excluded. These asked whether Stutzman knew that Jones knew Surette and that the men had been together. At that point, Jones's attorney stated that he took an exception 'to this witness having been allowed to testify' on the ground (stated at the bench) that 'even though he did not give his employment on the stand, we do not * * * (know) that a member or members of the jury may not be aware of his official capacity.' Surette's attorney also objected and the judge sustained his objection, but overruled Jones's objection and directed that Jones's exception be noted. We construe Jones's belated exception as a motion to strike.

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