Com. v. LaBriola

• Decision Date: 02 June 1976
• Citation: Com. v. LaBriola, 348 N.E.2d 758, 370 Mass. 366 (Mass. 1976)
• Parties: COMMONWEALTH v. Joseph F. LaBRIOLA.
• Court: Supreme Judicial Court of Massachusetts

Page 758

348 N.E.2d 758

370 Mass. 366

COMMONWEALTH

v. Joseph F. LaBRIOLA.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 3, 1976.

Decided June 2, 1976.

Malvine Nathanson, Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

The defendant appeals from his conviction of murder in the first degree and from the denial of his motion for a new trial. We uphold the rulings of the judge. As to the suppression of money found in the defendant's briefcase, we hold that (1) the judge was warranted in finding that the defendant voluntarily consented to the opening of the briefcase, (2) in the circumstances, the police were justified in taking an inventory of its contents, and (3) any error in these respects was harmless beyond a reasonable doubt. We also hold that there was no error in denying the motion for a new trial, and we find no occasion for disturbing the conviction under G.L. c. 278, § 33E.

The jury could have found, from the defendant's own testimony, that on the night of May 10, 1973, he drove the victim, a dealer in cocaine, to the spot where the body, shot eleven times, was found the next morning. There was also evidence that the defendant later had with him cocaine from the victim's 'private stash,' that he went to New Jersey the next morning, that he had substantial sums of money thereafter, that he was in Roanoke, Virginia, a week later, and that he was planning to drive to Arizona. There was also evidence that the defendant had given several significantly different versions of the critical events.

1. The motion to suppress. The evidence on the motion to suppress consisted entirely of the testimony of a Roanoke police officer. He testified that he arrested the defendant at a restaurant in Roanoke a week after the crime, that he patted the defendant down for weapons and found a knife, and that the defendant gave a false name. The defendant was given Miranda warnings, and he asked the officer to stop at a local Pontiac garage and pick up a briefcase. The officer picked up the briefcase from the office manager there and was told it was full of money. The defendant was then taken to police headquarters and searched, the briefcase was opened with a key furnished by the defendant, and the money, $4,400, was counted in the defendant's presence. The judge made findings in accordance with this testimony, found that 'the defendant gave his consent voluntarily and the subsequent search was not unreasonable,' and denied the motion to suppress.

We think the evidence warranted the judge's finding that the defendant consented to the opening of the briefcase. Contrary to the defendant's contention, even though he was in custody there was no requirement of a showing that he knew of his right to refuse his consent. United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Cf. Commonwealth v. Roy, 349 Mass. 224, 228--230, 207 N.E.2d 284 (1965); United States v. DiPrima, 472 F.2d 550, 551 (1st Cir. 1973); Leavitt v. Howard, 462 F.2d 992, 998 (1st Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 175, 34 L.Ed.2d 140 (1972). Moreover, apart from the defendant's consent, the opening of the briefcase and counting of the money was necessary to safeguard the defendant's property and to protect the police from false claims. See Commonwealth v. Ross, 361 Mass. 665, 681 n. 7, 282 N.E.2d 70 (1972), vacated on other grounds, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973); Commonwealth v. Cavanaugh, --- Mass. ---, --- ^a, 317 N.E.2d 480 (1974), and cases cited. As to police inventory procedures in Roanoke, see Cabbler v. Commonwealth, 212 Va. 520, 522--523, 184 S.E.2d 781 (1971), cert. denied, 405 U.S. 1073 (1972). Cabbler v. Superintendent, 528 F.2d 1142, 1145--1147 (4th Cir. 1975).

If...