Com. v. Williams

• Decision Date: 22 August 1979
• Citation: 393 N.E.2d 937,8 Mass.App.Ct. 283
• Parties: COMMONWEALTH v. George Douglas WILLIAMS.
• Court: Appeals Court of Massachusetts

Page 937

393 N.E.2d 937

8 Mass.App.Ct. 283

COMMONWEALTH v. George Douglas WILLIAMS.

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 16, 1979.

Decided Aug. 22, 1979.

Bernard Grossberg, Boston, for defendant.

James S. Hamrock, Jr., Sp. Asst. Dist. Atty., for the Com.

Before HALE, C. J., and GOODMAN and DREBEN, JJ.

GOODMAN, Justice.

The defendant was found guilty on an indictment charging conspiracy illegally to "possess with intent to distribute certain substances designated as controlled substances." See G.L. c. 94C, § 40.

During the course of a lengthy trial, the Commonwealth presented seventeen witnesses, the majority of whom were law enforcement officers. Their testimony and wiretaps of both the defendant's and a codefendant's telephones ¹ evidenced an extensive cocaine distribution operation which involved the defendant, his wife, son, brother and nephew. There were two additional codefendants, who had access to the "stash" (the location where the narcotics were kept prior to sale).

The defendant, who was the leader of the operation, refused to deal with strangers. His procedure was generally as follows: whenever one of the codefendants had a prospective customer, he would telephone the defendant's home on Hazelton Street in Mattapan. Either the defendant or his wife would take the order, quote a price, and tell the caller what time the drugs would be available. Then the defendant or his wife would telephone a Blue Hill Avenue address (the "stash") to find out how soon the order would be ready. On a number of occasions after such calls, the defendant was observed by police getting into his car, driving to the "stash," and subsequently returning home. Several times an undercover agent gave sums of money to the defendant's nephew and brother for cocaine. The agent then waited in the car outside the Hazelton Street house while they obtained the narcotics from the defendant. Upon a later search, pursuant to a warrant, cocaine was found at the "stash," and a cocaine residue was found in the defendant's apartment. Marihuana and a revolver were also found in the defendant's apartment.

The defendant appealed (G.L. c. 278, §§ 33A-33G) and argues seven assignments of error. We discuss them in the order argued by the defendant and affirm the judgment.

1. Motion to suppress. The defendant attacks the affidavit of Detective Hanscom in support of the application for a wiretap authorization (G.L. c. 272, § 99 F; Commonwealth v. Vitello, 367 Mass. 224, 256, 327 N.E.2d 819 (1975)) on the ground that it contains "misstatements" and "untruthful assertions." The affidavit listed six specific instances in which a particular informant (referred to as "It") had given Detective Hanscom "information which has resulted in arrests and convictions" of named persons for violation of the drug laws, G.L. c. 94C. At the hearing on the motion to suppress, the defendant produced search warrants and supporting affidavits in connection with four of the listed arrests and convictions, each of which affidavits set out information provided by an informant also referred to as "It." The defendant elicited from Detective Hanscom that the "It" referred to in those affidavits was not the same person as the "It" referred to in the affidavit for the wiretap application. Detective Hanscom testified, however, that "It" referred to in the wiretap application had indeed provided information in connection with the earlier cases, though not referred to in the affidavits for the search warrants in those cases.

The judge who heard the testimony believed Detective Hanscom, and we find no inconsistency which might cast doubt on his appraisal. Indeed, an examination of the careful and detailed affidavit for wiretap authorization, which, as reproduced in the defendant's brief, comprised eighteen pages, indicates that it is consistent with the concern by the Legislature that the "use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth (and that) . . . (t)he use of such devices by law enforcement officials . . . should be limited to the investigation of organized crime." G.L. c. 272, § 99 A, Preamble as appearing in St.1968, c. 738, § 1. Commonwealth v. Vitello, 367 Mass. at 255, 327 N.E.2d at 838. ("We, of course, agree that the statutory authority to apply for wiretap orders should 'be used with restraint' "). We do not have here an attempt to bolster a dubious affidavit. The affidavit contains extensive corroboration of the information given by "It": independent investigations by both Hanscom and a special agent of the Drug Enforcement Administration of the Department of Justice, and information given by another informant which the defendant does not question. ² See Commonwealth v. Alessio, --- Mass. ---, --- - --- ^A, 384 N.E.2d 638 (1979). ³

We therefore need not consider the holding in Commonwealth v. Reynolds, 374 Mass. ---, --- - --- ^B, 370 N.E.2d 1375 (1977), in which the Supreme Judicial Court remanded to the Superior Court a claim that an affidavit in support of a warrant was false. The court held that "if the judge should conclude on a preponderance of the evidence that the misstatements in the affidavit were intentional (they were certainly material), he should suppress the material obtained under the warrant. If he concludes that there was mere inadvertence without negligence, he should refuse to suppress. If his conclusion lies between these polar categories, he may return the matter directly to this court." ⁴ Compare Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). But see Commonwealth v. Monosson, 351 Mass. 327, 329, 221 N.E.2d 220 (1966); Commonwealth v Reynolds, supra at n.15, and material to which it is appended.

2. Motion for particulars. The defendant cannot complain of the denial of his motion for particulars since it was denied without prejudice, and he took no exception. See Mass. R.A.P. 1B, --- Mass. --- (1979). ⁵ The motion was denied on December 17, 1973, and the trial did not begin until October 13, 1976; no attempt was made to renew the motion although the judge had during the proceedings indicated to other counsel with the same motions that they might renew their requests. Commonwealth v. Hall, 369 Mass. 715, 727, 343 N.E.2d 388 (1976). See Ogens v. Northern Ind. Chemical Co., 304 Mass. 401, 402-403, 24 N.E.2d 1 (1939).

We therefore need not consider the applicability of G.L. c. 277, § 38, or Commonwealth v. Baker, 368 Mass. 58, 73-77, 330 N.E.2d 794 (1975), in which the court held that the denial of particulars was error but that the defendants were in no way prejudiced in their defense because "(t)here had been considerable pre-trial discovery (and) (t)he defendants knew at all times the essential basic facts . . . which they might have obtained if the particulars had been ordered" (Id. at 77), 330 N.E.2d at 805. Cf. Commonwealth v. Comins, 371 Mass. 222, 225, 356 N.E.2d 241 (1976), in which an indictment for a substantive drug offense was in the language of G.L. c. 277, § 38, but the court pointed out that the defendant's motion for particulars had been allowed. Cf. also Commonwealth v. Gallo, 2 Mass.App. 636, 638-639, 318 N.E.2d 187 (1974). In our case, the defendant also had access both to information of police investigations set out in the affidavit for a wiretap warrant and to the tapes of conversations (see G.L. c. 272, § 99 O ) on which the Commonwealth based its case. The defendant points to nothing which might indicate the slightest prejudice from the failure to give particulars. Thus, such failure, even if error in light of the generality of the indictment and "if viewed as having constitutional dimensions" ⁶ (Commonwealth v. Baker, 368 Mass. at 77, 330 N.E.2d at 805), was harmless beyond a reasonable doubt.

3. Motion for recusal. We do not believe that the trial judge was required to recuse himself from presiding at the defendant's jury trial in October, 1976, because in 1973 he had authorized a wiretap of the defendant's telephone and the renewal of the wiretap warrant. G.L. c. 272, §§ 99 H, J. Although the judge in renewing the warrant characterized the interceptions on which the renewal was based as revealing "an extensive organization which supplies illegal drugs" and as implicating the defendant, this characterization and the documents in which it was contained were, as the trial judge pointed out in his findings, rulings and order, "solely for the purpose of indicating probable cause for the continuance of the wiretap, not as any finding of fact as to the merits of this case." In these circumstances, the judge was within his discretion in refusing to disqualify himself from presiding at the defendant's jury trial. Commonwealth v. Coyne, 372 Mass. 599, --- ^C, 363 N.E.2d 256 (1977). Much must be left to the sound judgment of the judge himself. Commonwealth v. Leventhal, 364 Mass. 718, 725, 307 N.E.2d 839 (1974), citing King v. Grace, 293 Mass. 244, 247, 200 N.E. 346 (1936). Compare United States v. Garramone, 374 F.Supp. 256, 258 (E.D.Pa.1974) (in which a judge who had authorized a wiretap refused to recuse himself from the trial on the merits), with United States v. Zarowitz, 326 F.Supp. 90, 92-94 (C.D.Cal.1971) (in which a judge who had likewise issued a wiretap warrant did recuse himself).

In making such a decision the judge should determine whether the particular circumstances of his participation in the issuance of the wiretap warrant "might be termed participation in pre-indictment investigations" the view of the judge in the Zarowitz case at 92 or whether in the circumstances his position is more analogous to that of a trial judge to whom a motion to suppress has been referred and who, after deciding the motion, which may involve probable cause and other matters decisive at trial, then presides over a jury trial. ⁷ Commonwealth v. Williams, 364 Mass. 145, 149, 301 N.E.2d 683, 687 (197...