Com. v. Mele
| Decision Date | 30 October 1970 |
| Citation | 263 N.E.2d 432,358 Mass. 225 |
| Parties | COMMONWEALTH v. Nicholas MELE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. Stanley Cooke, Pittsfield, for defendant.
Leonard E. Gibbons, Asst. Dist. Atty., for the Commonwealth.
Before SPALDING, KIRK, SPIEGEL and QUIRICO, JJ.
The defendant was first tried in the District Court of Central Berkshire on a complaint charging him with 'being found on a public way' with certain gaming apparatus for 'registering bets' upon the result of a horse race and a second complaint charging conspiracy to violate the gaming laws. He was found guilty on both complaints. Upon his appeal to the Superior Court he was tried before a jury and a verdict of guilty was returned on each charge. The case is here on the defendant's excaptions.
A hearing was held on the defendant's motions to suppress evidence allegedly obtained as a result of an illegal search warrant. Edmund F. McBride, clerk of the District Court, testified that State police Officer John F. Charles approached him on March 19, 1965, to apply for a search warrant for the defendant's car. Officer Charles presented an affidavit which had been prepared in advance. The affidavit, which was duly introduced in evidence, recited that Officer Charles during the course of a gaming investigation in Pittsfield, had obtained reliable information 'relative to a man known as 'Nick' (who) was booking in the area of the Busy Bee Cafe, West St., Pittsfield,' and that The affidavit also said that Officer Charles and other officers had observed the defendant on several occasions exchanging money with other persons inside and outside of the Busy Bee Cafe, had observed horse racing forms being read and handed around inside the restaurant, and had observed the defendant getting into and out of his car while parked near the Busy Bee Cafe. The affidavit described the car with particularity. It indicated that the property being sought included '(b)ooks, apparatus and devices used for the purpose of registering bets upon the speed, trial or endurance of a beast, to wit; Horses, and the buying and selling of pools, including monies; and all lottery tickets, a share of a ticket, or any writing, certificate, bill, token, or other device used in the furtherance of a lottery.' However, it contained no information or observations of a lottery. The Commonwealth stipulated that the information presented by Officer Charles to the clerk pertained only to bookmaking and not to any other types of gaming activity. The clerk issued the warrant pursuant to Officer Charles's application and affidavit.
The next day, March 20, 1965, the warrant was served on the defendant by Officer Richard W. Blanchard f the Massachusetts State police with several other officers. The officers searched the defendant's car and found copies of racing newspapers entitled 'The Morning Telegraph,' the 'Armstrong Daily News Review,' 'another paper referred to as an Overnight * * * (containing) a mimeographed list of entries for a race track for the particular day,' United States currency in the amount of $1,298.40, two checks, two pencils, and a pen. Officer Blanchard then told the defendant that he was under arrest for being found with apparatus for registering bets; that he did not have to say anything if he did not want to; that anything he did say could be used against him; and that he was entitled to make a phone call to a lawyer. The defendant said that he did not wish to call a lawyer and would get one when he went to court. The defendant was then questioned. Trial commenced in the District Court on March 29, 1965.
The defendant contends that he 'was not advised of his rights as set forth in the Miranda case that if he could not afford a lawyer that one would be provided for him prior to the interrogation.' However, the rule stated in the Miranda case applies only to those cases begun after the date of the Miranda decision (June 13, 1966). Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 772, 16 L.Ed.2d 882. The instant case began more than one year before the Miranda decision; nevertheless, the defendant contends that the Miranda rule should apply because his de novo trial in the Superior Court began after the date of the Miranda decision. We do not agree. This situation is governed by the case of Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253, where the Supreme Court of the United States refused to apply the Miranda rule to a retrial of a case in which the original trial had occurred before the decision in the Miranda case.
The defendant also contends that the trial judge erred...
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