Com. v. Wood

Decision Date22 June 1983
Citation389 Mass. 552,451 N.E.2d 714
PartiesCOMMONWEALTH v. William D. WOOD, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert I. Warner, Boston, for defendant.

Patricia A. McEvoy, Legal Asst. to the Dist. Atty., Brighton, for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

On January 13, 1981, a grand jury returned four indictments, containing twelve counts, for possession of controlled substances of classes B, C, D, and E, with intent to distribute in violation of G.L. c. 94C, against the defendant, William D. Wood, Jr. A fifth indictment charged illegal possession of hypodermic needles and syringes, adapted for the administration of controlled substances by injection. After a four day trial in the Superior Court in Middlesex County, the defendant was found guilty of possession with intent to distribute phencyclidine, diazepam, lysergic acid diethylamide, barbituric acid, amphetamines, and marihuana. Wood was also convicted of the lesser included offenses of illegal possession of codeine, chlorpromazine, thioridazine, Renese R, phenobarbital, and cocaine. 1 He was convicted also of illegal possession of hypodermic needles and hypodermic syringes. The defendant was sentenced on the conviction of possession with the intent to distribute phencyclidine to ten years in the Massachusetts Correctional Institution at Concord (MCI Concord), from and after the expiration of a sentence then being served in Federal custody. On the convictions of possession with intent to distribute barbituric acid and amphetamines, Wood was sentenced to concurrent ten-year terms in MCI Concord, to take effect from and after his sentence for possession of phencyclidine with intent to distribute. All other charges were placed on file.

Prior to trial, the defendant filed a motion to suppress evidence, alleging that the evidence was illegally seized under a warrant lacking probable cause and by a search which exceeded the scope of the warrant. A judge of the District Court, sitting in the Superior Court by designation, denied the motion after a hearing. 2 After the trial, the defendant filed an appeal in the Appeals Court. We transferred the appeal here on our own motion.

The defendant contends that the motion judge erred in denying the motion to suppress. 3 Furthermore, the defendant alleges a violation of his right to a fair trial and his right to be tried by an impartial jury by the trial judge's disallowance of several of the defendant's peremptory challenges. The defendant claims that the trial judge erroneously applied the Soares rule to peremptory challenges by the defendant, perceived by the trial judge to be based on age. See Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). We conclude that the motion judge correctly denied the motion to suppress evidence, but that the trial judge erred in disallowing the peremptory challenges of the defendant, and we reverse.

We turn first to the suppression issue. On July 28, 1980, the defendant went to the apartment of Kathy Lund and Michael DesRoche in Lowell. DesRoche had known Wood for some time. The defendant was admitted by Lund, who also knew Wood. DesRoche was not present. Wood claimed that DesRoche owed him money. He then proceeded to gather up personal property belonging to either, or both, Lund and DesRoche as security for the debt. Wood stated to Lund that the property would be at his apartment and could be recovered when he had been paid.

The property taken by Wood consisted of two sets of stereo speakers, a stereo, and an "eight-track" stereo. Apparently, unknown to Wood, at least at this point in time, one of the speakers contained nine packages of cigarettes and a prescription bottle containing Dilantin capsules, each with one-half gram of phenobarbital. DesRoche suffers from epilepsy and uses the medication to control his seizures. After DesRoche returned to the apartment, he learned of Wood's actions and called the Lowell police department in the early evening.

Inspector John P. Guilfoyle interviewed Lund and DesRoche in their apartment for ten to fifteen minutes. After getting a description of the property taken from their apartment and the location where supposedly the property was taken, Inspector Guilfoyle next obtained a search warrant from an assistant clerk of the Lowell Division of the District Court Department.

The warrant was based on an affidavit by Inspector Guilfoyle. It authorized a search of the defendant's entire apartment, as well as of four storage bins in the attic. The search warrant described, with particularity, the stereo speakers, the stereos, the cigarettes, and the prescription drug issued to DesRoche as the objects to be searched for and seized.

Shortly after midnight, on the morning of July 29, 1980, the search warrant was executed by Inspector Guilfoyle and six other members of the Lowell police department. The defendant opened his apartment door in response to the knock by a uniformed police officer. After being informed by the officer that he had a warrant to search the premises, Wood let the police in.

The stereo equipment and speakers described in the warrant were found by police immediately upon their entering the apartment in the location pointed out by the defendant, but the cigarettes and DesRoche's medication were not. While the three uniformed officers stood by, the four plain-clothes officers then engaged in an extensive search of the entire apartment for the cigarettes and DesRoche's medication. During the forty-five minute search, the police seized objects not described in the warrant which constitute the basis of the indictments against the defendant charging violation of G.L. c. 94C. 4

The motion judge found that there was sufficient cause to issue the search warrant, and this finding is not challenged by the defendant. 5 The narrow issue before us, then, is whether the search of the defendant's apartment by the police exceeded the permissible scope of the search authorized by the search warrant. The defendant contends that the testimony at the suppression hearing of both himself and DesRoche makes the conclusion inescapable that the police knew the location of the cigarettes and the Dilantin at the outset, but continued to conduct a general search beyond the scope of the warrant in violation of the Fourth Amendment to the Constitution of the United States. See Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 1250, 22 L.Ed.2d 542 (1969) (Stewart, J., concurring, with whom Brennan and White, JJ., joined); Marron v. United States, 275 U.S. 192, 195-196, 48 S.Ct. 74, 75-76, 72 L.Ed. 231 (1927). The motion judge made subsidiary findings of fact before concluding that the police did not exceed their authority to search. The standard of review to be employed by this court is whether the evidence warranted the findings made by the motion judge. See Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980); Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972).

The testimony surrounding the execution of the search warrant at Wood's apartment is conflicting. DesRoche testified for the defendant. He claimed that he emphasized to the police, on several occasions, that his medication could be found in one of the stereo speakers and that he had told the defendant the location of his medication prior to the execution of the search warrant. The defendant testified that he knew where the cigarettes and Dilantin were, that he went over to the speaker, removed the cigarettes and medication, and handed them to the police prior to the search of the rest of his apartment. 6

Three officers testified that they did not know the location of the cigarettes and Dilantin at the time of the execution of the search warrant. Furthermore, the officers testified that they did not discover the cigarettes and medication until they returned to police headquarters with the stereo equipment and the items seized.

The testimony is in agreement that the components of stereo equipment were the only items listed in the warrant which were visible to the officers prior to the search of the rest of the premises. The witnesses also agree that the defendant pointed to apile of stereo equipment and indicated that all property taken from DesRoche was there. The police testimony was that the search of the rest of the apartment was for the other items listed in the warrant, namely the cigarettes and DesRoche's medication (Dilantin). The police maintained that as they searched the rest of the apartment for these items, the items seized by the police were found in plain view.

The motion judge found that "the police did not know that the cigarettes and delantin [sic ] were located inside the stereo at the time they executed the search warrant." He concluded that the thorough search of the rest of the premises described in the warrant was necessary and proper. Since the scope of the search of the entire premises was permissible, the motion judge then found that the confiscated drugs, drug paraphernalia, and other seized evidence 7 were in plain view and "obviously contraband."

The evidence before the motion judge consisted primarily of oral testimony. "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Moon, supra 380 Mass. at 756, 405 N.E.2d 947. "[W]e do not substitute our judgment for [the motion judge's], absent clear error." Id. See Commonwealth v. Harmond, 376 Mass. 557, 560, 382 N.E.2d 203 (1978); Commonwealth v. Murphy, supra. Where, as here, the testimony is in conflict, we cannot conclude that the motion judge clearly erred in disbelieving the testimony of the defendant and DesRoche regarding the knowledge of the...

To continue reading

Request your trial
38 cases
  • People v. Kabongo
    • United States
    • Michigan Supreme Court
    • 20 Mayo 2021
    ...of the right to exercise a proper peremptory challenge is reversible error without a showing of prejudice." Commonwealth v. Wood , 389 Mass. 552, 564, 451 N.E.2d 714 (1983), citing Commonwealth v. Soares , 377 Mass. 461, 492, 387 N.E.2d 499 (1979).In an additional case of note, the Delaware......
  • Commonwealth v. Grier
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 9 Agosto 2022
    ...undermine the right to an impartial jury are structural errors. Williams, supra at 455, 116 N.E.3d 609, quoting Commonwealth v. Wood, 389 Mass. 552, 564, 451 N.E.2d 714 (1983). We have previously determined, however, that the erroneous dismissal of a potential juror that the defendant had h......
  • Com. v. Freiberg
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 6 Julio 1989
    ...There is no fundamental right to peremptory challenges under either Federal or Massachusetts constitutional law. Commonwealth v. Wood, 389 Mass. 552, 559, 451 N.E.2d 714 (1983) (Federal law). Commonwealth v. Reid, 384 Mass. 247, 253-254, 424 N.E.2d 495 (1981) (State law). See Ross v. Oklaho......
  • Com. v. Owens
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 12 Marzo 1993
    ...784, 789, 477 N.E.2d 995 (1985) (prejudicial diminution of peremptory challenges constitutes reversible error); Commonwealth v. Wood, 389 Mass. 552, 564, 451 N.E.2d 714 (1983) (erroneous denial of proper peremptory challenge reversible error). Whatever benefit the defendant would gain from ......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Relentless Criminal Cross-Examination
    • 30 Marzo 2016
    ...v. Watson , 36 Mass. App. Ct. 252 (1994), Form 3-D Commonwealth v. Willis , 415 Mass. 814 (1993), Forms 3-A, 4-A Commonwealth v. Wood , 389 Mass. 552 (1983), Form 3-C Commonwealth v. Wren , 391 Mass. 705 (1984), Form 3-B Commonwealth v. Young , 382 Mass. 448 (1981), Form 3-C Coy v. Iowa , 4......
  • Cross-Examination of Arresting Officer: Motions to Suppress
    • United States
    • James Publishing Practical Law Books Relentless Criminal Cross-Examination
    • 30 Marzo 2016
    ...the search warrant conferred on the police expired, and they were required to immediately depart the premises. Commonwealth vs. Wood , 389 Mass. 552, 558 (1983) (“if items described in the search warrant had been found prior to the search, the authority to search ended when the purposes of ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT