Com. v. Nunes

• Decision Date: 01 December 1966
• Citation: 221 N.E.2d 752,351 Mass. 401
• Parties: COMMONWEALTH v. Manuel R. NUNES, Jr. (and two companion cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 752

221 N.E.2d 752

351 Mass. 401

COMMONWEALTH v. Manuel R. NUNES, Jr. (and two companion cases.)

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 3, 1966.

Decided Dec. 1, 1966.

Melvin S. Louison, Taunton (Albert J. Fayad, Brockton, and Evan F. Gellar, Chelsea, with him), for defendant.

Peter B. Gay, Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

The defendant was convicted on indictments charging him with assault with intent to rob, assault with intent to rape, and breaking and entering in the nighttime with intent to commit a felony. The trial was made subject to the provisions of G.L. c. 278, §§ 33A--33G. The cases come to us on the summary of the record, a transcript of the evidence, and assignments of error. The evidence is summarized as follows.

The complainant, a woman of fifty-nine at the time of the alleged offence, lived alone in North Dighton. On August 30 1961, she returned home at 10:30 P.M. from an evening out with friends. She went into her bedroom to disrobe when a man emerged from her closet and placed his hands over her eyes and mouth, threatening her life if she made any outcry. The intruder placed the complainant on a bed and attacked her; he then took her pocketobook and wallet and left. He was of medium build and had a cheesecloth Fuller Brush bag over his face. He was wearing a white shirt open at the neck, a greenish-blue slip-on sweater, and dark summer trousers. Entrance to the house had evidently been gained by forcing the kitchen door. The cheesecloth bag was subsequently found by a State trooper on the same evening about fifty feet from the complainant's house. The defendant was arrested on September 7, 1961, on a warrant issued from the Taunton District Court. On the following day, on the application of a State trooper, a search warrant issued from the Fall River District Court, as a result of which State troopers went to the defendant's house during the day and seized a blue cardigan sweater, two pairs of brown pants, a pair of chino pants, and a wool and leather jacket. A motion to suppress the evidence seized was allowed as to the two pairs of brown pants and the wool and leather jacket. A State police chemist, qualified as an expert, testified to certain human blood stains, as well as to certain fibers and human hair, found on the cheesecloth bag. which fibers, he testified, were similar in color to those in the sweater seized by the State police at the defendant's home. The chemist also testified that the microscopic tests made by him on the pair of tan chino pants which were in evidence indicated the presence of sperm.

The defendant took the stand in his own behalf, denied his participation in the events as charged, and admitted having been 'arrested for numerous felonies in Rhode Island,' for at least one of which he was imprisoned. He also admitted being sentenced in Fall River in 1961 to three to five years' imprisonment for breaking and entering, and to other offences committed in Massachusetts.

We consider only those assignments of error which the defendant has argued to us. Commonwealth v. Gliniecki, 339 Mass. 464, 466, 159 N.E.2d 657.

1. The defendant's first assignment of error alleges that the court below erred '(b)y denying the defendant's Motion for a Continuance on the grounds that he was ill and under the influence of narcotics.' The defendant raised the issue for the first time on the day his trial began. He submitted no proof to substantiate the claim that he was either ill or under the influence of narcotics. The allowance of a motion for a continuance was within the discretion of the trial judge. Commonwealth v. Soaris, 275 Mass. 291, 297, 175 N.E. 491; Commonwealth v. Chapin, 333 Mass. 610, 616--617, 132 N.E.2d 404; Commonwealth v. Hanley, 337 Mass. 384, 390, 149 N.E.2d 608, 66 A.L.R.2d 222. The defendant had the burden of showing that the ruling complained of was erroneous. Commonwealth v. Klangos, 326 Mass. 690, 691, 96 N.E.2d 176. There is nothing in the record to indicate an abuse of discretion. The matter was further reviewed at great langth and findings were made on the defendant's motion for a rehearing of his motion for a new trial. There is every indication that the trial judge gave the defendant's contention contained in his first assignment all the attention which it warranted. There was no error.

2. As his fourth assignment of error, the defendant contends that the court below erred by the admission in 'evidence of certain items of the defendant's clothing which were obtained on the basis of only a search warrant and not a search and seizure warrant.' The search of the defendant's house and the seizure of several items of his clothing resulted from the issuance of a warrant by the Fall River District Court. See G.L. c. 276, § 1. There is no merit in the defendant's argument that this section did not authorize the seizure of the articles which the warrant described. General Laws c. 276, § 3, as amended, provides in part that '(i)f an officer in the execution of a search warrant finds property or articles therein described, he shall seize and safely keept them * * * so long as necessary to permit them to be produced or used as evidence on any trial.'

On a motion to suppress, the burden of establishing that evidence has been illegally obtained is on the moving party. Commonwealth v. Fancy, 349 Mass. 196, 202, 207 N.E.2d 276, and cases cited. Since the defendant failed to produce evidence indicating that the searth and seizure were not made pursuant to a valid warrant, the judge properly denied the motion to suppless all the evidence seized on the ground that ...