Com. v. Sandler

Citation335 N.E.2d 903,368 Mass. 729
Decision Date09 October 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

Murray P. Reiser, Boston (David M. Shaw, Boston, with him), for defendant.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.


QUIRICO, Justice.

The defendant was found guilty by a jury at a single trial on six indictments, each of which charged the crime commonly referred to as receiving stolen property. G.L. c. 266, § 60. On each of five of the indictments he was sentenced to the house of correction for the term of one year, all sentences to run concurrently and all being suspended for one year; and on the sixth indictment he was fined $250. This is the defendant's consolidated appeal therefrom under G.L. c. 278, §§ 33A--33G. The appeal was originally entered in the Appeals Court and was thereafter removed by us to this court for direct appellate review. G.L. c. 211A, § 10(A), inserted by St.1972, c. 740, § 1.

The principal alleged errors argued by the defendant on this appeal are the following actions by the judge before or during the trial: (1) the denial of his motions to suppress as evidence the stolen goods which were seized by the police without a search warrant, (2) the denial of his motion for a mistrial which he requested because of an alleged ethnic slur against him by a prosecution witness, (3) the rulings on several evidentiary questions which arose during the trial, (4) the denial of motions for directed verdicts made at the close of the Commonwealth's opening, at the close of the Commonwealth's evidence, and again at the close of all the evidence, and (5) the refusal to instruct the jury that as to the goods involved in indictments nos. 92,675; 92,676 and 92,677 they could not find that the goods were 'recently stolen,' and the giving of an instruction that it was a question of fact for the jury to determine whether those goods were 'recently stolen.'

For the reasons stated below, we hold that there was no error and that the judgments on all indictments should be affirmed.

We summarize certain facts which are not in dispute. On February 4, 1971, several State and town police officers, with the permission of the owner, one Raymond Drew, entered a barn located at the rear of 16 Washington Street in Reading, and seized and removed therefrom a large quantity of merchandise. The parties stipulated that all of this property had been stolen, and that it was the same property which the defendant is charged, in the six indictments involved in this case, with having received knowing it to have been stolen. 1 The police acted without a search warrant. The defendant filed a motion as to each indictment to suppress all of the merchandise as evidence, alleging that the warrantless search of the premises and seizure of the merchandise were unlawful. Before empanelling the jury the judge heard evidence and arguments on the motions to suppress, after which he made express oral findings and rulings thereon which appear in the transcript of the hearing, and denied the motions. The judge's findings and rulings will be summarized in the discussion relating to the denial of the motions.

Additional appropriate statements of facts or of evidence will be made in the discussion of the other alleged errors assigned by the defendant.

1. Motion to Suppress Evidence. We summarize the facts found by the judge in relation to his denial of the defendant's motions to suppress the merchandise allegedly unlawfully seized by the police officers. At all times material to the motions, Raymond Drew rented to the defendant as a tenant at will a portion of a two-story barn located in Reading. The barn thus rented was connected to another building owned by Drew. In the wall between the barn and other building there was an opening from which a person or persons unknown had removed a door, thus permitting passage between the two buildings.

On or about February 3, 1971, certain police officers who were investigating the reported theft of personal property asked Drew about the ownership or rental of the barn and Drew told them that it had been rented to the defendant. On the basis of that information, the police officers went to see the defendant the next day, February 4, 1971, at his place of business in Reading. They gave him the so called Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), specifically directed his attention to the subject of the barn and to certain goods then in the barn, and asked him whether he had rented the barn. He denied renting the barn or storing any property there, and he said that the only places which he rented or used for storage were the store where the questioning was going on and a couple of trailers in the back of that building. The judge concluded 'that the defendant specifically disclaimed in affirmative fashion any knowledge of renting the locus (the barn) or of owning any of the merchandise at that locus,' and 'that at least one of the police officers, the primary questioner of the defendant at that time, did not believe the defendant's denial of any renting relationship as to the locus.'

The police officers then returned to the landlord, Drew, and told him of the defendant's disclaimer of any rental relationship in so far as the barn was concerned. Thereupon Drew consented to the entry by the police officers into the barn. The officers first entered the part of the building not rented to the defendant and which was occupied by Drew, and from that point they looked through the opening described above and into the barn rented to the defendant, thus seeking the matterials stored in the barn to the extent that the opening afforded a view of the interior of the barn. They then obtained permission from Drew to enter the barn rented by the defendant. The officers gained entry to the barn by breaking a lock on an outer door. In the barn the officers found the various articles described in the six indictments against the defendant and in the Commonwealth's particulars thereto. They are the same articles referred to in the defendant's motions to suppress.

The judge then stated several general conclusions and rulings which we summarize: (1) the defendant had standing to question the validity of the seizure of the merchandise in the barn, citing Commonwealth v. Dirring, 354 Mass. 523, 238, N.E.2d 508 (1968), and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); (2) the defendant was warned by the police officers that he was not required to make any statement, but he chose to make a statement in which he totally disavowed and disclaimed any interest in the barn or in the goods stored therein; (3) having done that, the defendant cannot now be heard to complain that his constitutional rights were violated by reason of the fact that the officers did not first procure a search warrant; and (4) in these circumstances it was sufficient that the officers obtained the permission of the owner, Drew. The judge cited Commonwealth v. Mayer, 349 Mass. 253, 207 N.E.2d 686 (1965), Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), and Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1965).

The evidence supported the judge's subsidiary findings, and the subsidiary findings in turn supported his general conclusions. His rulings of law were correct, and there is nothing which we need add to what he placed in the record in denying the motions to suppress. There was no error in that respect.

2. Motion for Mistrial. One of the prosecution witnesses was a Reading police officer. In cross-examination he testified that several years earlier he had had a dispute with the defendant as a result of which he was quite angry with him, but that he was not angry with him at the time he was testifying. On redirect examination the prosecutor brought out that the dispute had occurred six to seven years earlier and he asked the witness what the dispute was about. The witness said that he had purchased some fertilizer from the defendant, that the defendant had loaned him a spreader, that he delayed several days in returning the spreader, and that when he entered the store to return it the defendant referred to him as a 'bastard' and he said to the defendant, 'You Jew s--- of a b_ _.' The judge then stopped him, the defendant moved for a mistrial and the judge denied the motion. The judge instructed the witness to refrain from using such language and instructed the jury to disregard the language.

The defendant calls the language of the witness 'an ethnic slur' and 'religious epithets' giving rise to prejudice which required the granting of a mistrial. We do not agree. The decision whether to handle the situation by declaring a mistrial or by instructing the jury to disregard the statements of the witness was discretionary with the judge. He did not abuse his discretion.

3. Evidentiary Rulings. The defendant has assigned as alleged errors a number of evidentiary rulings by the judge. We hold that there was no error in any of the rulings. The evidentiary questions are not novel, and most of the questioned rulings involved the element of judicial discretion with no showing of any abuse of that discretion. We therefore describe the alleged errors only to the extent necessary to identify them in disposing of the claims of error.

(a) The judge allowed a police officer to testify that certain hand painted price signs in the defendant's store were the same type signs as one found attached to an empty carton in the barn. The police had taken and saved the carton and the sign attached, but before trial they had been destroyed by mistake after a water leak in the police office where they were being kept. The witness described the signs at the store and the one found in the barn by size, color,...

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