Com. v. LaBella
| Decision Date | 06 January 1984 |
| Citation | 17 Mass.App.Ct. 973,458 N.E.2d 763 |
| Parties | COMMONWEALTH v. Vincent LaBELLA. |
| Court | Appeals Court of Massachusetts |
Walter T. Healy, Boston and Frederick C. Mycock, Barnstable, for defendant.
Russell J. Redgate, Asst. Dist. Atty., for Com.
Before GREANEY, CUTTER and PERRETTA, JJ.
RESCRIPT.
The defendant was charged with five violations of the gaming laws. A jury in the Superior Court convicted him of two of the five charges: illegally setting up or promoting a lottery, on January 7, 1982, in violation of G.L. c. 271, § 7, and on the same date, keeping a building containing apparatus, books and devices for registering bets in violation of G.L. c. 271, § 17. On appeal, the defendant argues that the judge erred in (1) denying his motion for a required finding of not guilty on both charges on the basis of insufficiency of the evidence, (2) allowing a State police officer to give opinion testimony, (3) failing to suppress items seized pursuant to a search warrant, (4) denying a request for an evidentiary hearing to test the veracity of the affidavit supporting the application for the warrant, and (5) refusing either to order disclosure of the identity of the informant referred to in the affidavit or to conduct an in camera hearing to investigate the matter further. We affirm the judgments.
1. The Commonwealth's case consisted of the testimony of three State police officers and the introduction of nineteen exhibits, the bulk of which were seized on January 7, 1982, during the search of a single family house located at 5 Great Neck Road, Mashpee. The exhibits included nine telephones found on the premises and listed to two Massachusetts telephone numbers, bills for those telephones, "cuff lists", notebooks, numerous envelopes, bank statements, newspapers, a 1981 calendar, a quantity of gel paper, and $17,460 in cash.
James M. Cummings, a State police trooper with experience in the investigation of illegal gambling activities, testified about the seizure of the exhibits and their significance to illegal gambling. He indicated that the "cuff lists" constituted records of debts owed a bookmaker by bettors, that the envelopes were probably used to separate payments to bettors and to store money for future payoffs, and that the water soluble gel paper was favored by bookmakers because it could be immediately destroyed by contact with water if the police tried to seize it. Various editions of the Herald-American were found on the premises opened to a section called "The Edge" or "The Latest Line." This column furnishes the latest betting lines on professional and college sporting events. Penned in next to "The Edge" in one of the newspapers were notations identified as a bookmaker's line on sporting events. To the right of the column were observed a series of numbers which Trooper Cummings identified as bets on numbers play consistent with the conduct of an illegal lottery.
Several pieces of paper bearing names like "Houston" or "Dallas" were seized. An envelope and an open notebook were found on a table and contained the point spread or line on sporting events, final scores of the events, and various notations which indicated sums of money owed a bookmaker. On the 1981 calendar were notations which suggested to the trooper the names of individuals who either owed or were owed money for illegal bets. In a briefcase was discovered a pad with notations which disclosed at least three locations where funds for an illegal gambling operation could have been secreted. In Trooper Cummings' opinion, the nine telephones were used by a bookmaker to ensure that his business could be conducted without interruption. While the search warrant was being executed, these telephones rang four or five times and were answered by the police. All the callers, upon hearing a trooper's voice, hung up without a response. A telephone call by Trooper Cummings to a number bearing a 212 area code listed on the telephone bills sent the defendant reached a recording of the "Howie Copen Sports Line," a service which furnishes the results of sporting events.
There was further testimony by a second State trooper that, on December 17, 1981, the defendant had been seen in a local lounge receiving a white envelope from one person and telling another person, prior to the receipt of a second envelope, "Give me your numbers before you have anything to drink." Subsequently, three other patrons of the lounge were observed approaching the defendant and handing him either a piece of paper or an envelope.
There was also evidence concerning the defendant's use of the premises at 5 Great Neck Road, including observations of him in the house on at least two occasions, the sighting of his automobile at the house at least five times, the discovery of mail addressed to the defendant on the premises, and verification that the telephones in the house were listed to the defendant and that the bills for the telephones were sent to him.
There was considerable additional testimony by Trooper Cummings detailing the modus operandi of illegal bookmakers and relating the trial exhibits to the defendant's role as a bookmaker. The trooper's testimony concluded with the opinion that the defendant was conducting an illegal gaming operation out of the premises at 5 Great Neck Road, Mashpee.
The defendant asserts that there was insufficient evidence to establish that he promoted a lottery within the definition of that term set forth in Commonwealth v. Lake, 317 Mass. 264, 267-268, 57 N.E.2d 923 (1944). See also Commonwealth v. Rivers, 323 Mass. 379, 381, 82 N.E.2d 216 (1948); Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 406, 280 N.E.2d 406 (1972). This assertion overlooks the substantial evidence presented by the Commonwealth indicating that the defendant was conducting a gambling operation based at 5 Great Neck Road and the very specific evidence that the defendant was actually taking bets on illegal numbers, a game in which "the element of chance ... predominates [over] ... the element of skill." Commonwealth v. Lake, supra 317 Mass. at 267, 82 N.E.2d 216. On all the evidence, the jury could have concluded beyond a reasonable doubt that the defendant's activities were principally devoted to taking bets on sports events and that his activities included as well the taking of a small number of bets on illegal numbers, perhaps for the convenience of good sports-betting customers. The charge under G.L. c. 271, § 7, was adequately made out under the standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).
We are also not persuaded by the defendant's arguments, as to the...
To continue reading
Request your trial