Cortellesso v. Com.

• Decision Date: 21 June 1968
• Citation: 238 N.E.2d 516,354 Mass. 514
• Parties: Albert CORTELLESSO v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 516

238 N.E.2d 516

354 Mass. 514

Albert CORTELLESSO v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 1, 1968.

Decided June 21, 1968.

Michael R. Pizziferri, Boston (Joseph A. Todisco, Boston, with him), for petitioner.

Willie J. Davis, Asst. Atty. Gen. (Evan T. Lawson, Legal Asst. to the Atty. Gen., with him), for the Commonwealth.

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

WHITTEMORE, Justice.

The issues on this petition for writ of error are reported by a single justice, without decision, on the pleadings, the return, the findings, and the transcript of evidence at the trial in the Superior Court in September, 1962, at which the defendant was convicted of possession of burglarious tools with intent to use them.

The petitioner contends that he was deprived of Federal constitutional rights in being required to proceed to trial without adequate assistance of counsel and in being convicted on illegally seized evidence, that is, the burglarious tools. He specifies that newly engaged trial counsel was allowed but one day for preparation, and that the petitioner's possession of the tools was discovered by a search following an arrest on suspicion and hence without probable cause. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

THE ARREST, THE SEARCH AND THE POLICE INVESTIGATION.

We state the facts as found by the single justice, and in some instances as more fully shown in the transcript of the trial.

The petitioner and a codefendant were arrested in Springfield about 9:15 P.M. on February 20, 1962, beside an automobile, convertible model, bearing Rhode Island plates.

John B. Boyd, a local businessman, going to his store on Bridge Street earlier in the evening, had seen the two men and the automobile. His suspicions had been aroused by the out-of-State car, stopped, not parallel to the curb, with its motor running, near the Astmann fur store. He had tried to keep the car under observation and had followed it as it was driven around nearby streets. Boyd had taken the registration number and had twice telephoned the police. He had seen the car a second time stopped almost in front of the Astmann fur store and had seen the codefendant, bent down in front of the fur store window, looking under papers that were placed over whatever was in the window. Boyd had also seen the petitioner looking in the fur store window from the doorway and speaking with his companion there.

After abortive attempts to follow the car the police found it parked on Hillman Street. The officer spoke to the two men as they returned to the car. The petitioner, after identifying the car as his and showing the car registration in his wife's name, said in answer to further questions that he was in the area waiting for his girl friend who worked for the telephone company. It was then 9:15 P.M. The officer knew that the girls left the telephone building at ten, eleven, and twelve o'clock. The car was somewhat removed from the telephone building. The officer told the men they were acting suspiciously and they were to go to the station for further questioning. An officer drove the Rhode Island car to the station. About 9:30 P.M. the police searched the car and found the tools and a marked map. The tools were in the depression of the convertible behind the area of the missing back seat and had not been observed before.

The petitioner testified that the police had looked in the trunk when he was first spoken to. He asserted that he had found the tools in the rear of a nightclub in Providence, Rhode Island.

The men were held at the police station on suspicion of committing a felony, and on February 23 they were arraigned on the charge of possession of burglarious tools with intent to use them. At the trial there was evidence, including the petitioner's own testimony, that, not long before, he had appeared at the Astmann store as a possible customer and had looked at furs with a woman companion; also that he had been allowed to go to the men's room in the basement. The tools were adequately identified as burglarious tools and the inference was strong that the intent was to use the tools to enter the fur store and steal furs. The evidence, it appears, had developed from prompt and careful police investigation.

THE SELECTION OF THE TRIAL ATTORNEY AND THE TIME FOR PREPARATION.

The case was tried by an attorney (hereinafter the trial attorney) engaged on the day preceding trial in the following circumstances.

The petitioner and his codefendant had been represented by another attorney for several months beginning with their arraignment in the lower court. The petitioner came to court on September 12 expecting to be represented by that attorney but the petitioner was an hour and a half late in appearing; it was his fault; he had been at fault in respect of appearances at earlier times. His counsel, reasonably in view of his obligation to the court, withdrew his appearance when the case was called and the petitioner was not present. When the petitioner arrived and the attorney told him he had withdrawn, the petitioner asked for a postponement. The judge asked the attorney to repeat what he had told the judge. The attorney stated his difficulties in attempting to reach the petitioner to prepare the case and the latter's failures to appear. On inquiry by the judge the attorney said he would refile his appearance if ordered to do so but he preferred not to. The judge did not so order and set the case for trial on September 13.

A principal reason for the reluctance of the attorney to reappear for the two defendants was the nonreceipt of the full amount of stipulated fees. The petitioner had made such payments as the attorney had received.

The trial attorney was in the court room and heard the colloquy. The two defendants later asked him to represent them. He said he could not go forward on such short notice. Later he heard another attorney state to the court that he had been asked to act as counsel and would need a postponement if he were to do so. He heard the court decline the request. That attorney did not accept the case. In the afternoon, at the trial attorney's office, the defendants again asked him to act for them. He told them that in his view it would be impossible to get a continuance but in the circumstances he would do the best he could, believing his assistance would be better than none. On September 13, he received the prior attorney's six pages of notes. He had short talks with the defendants before trial. His motion for specifications was answered orally on the morning of the trial.

THE SCOPE OF THE WRIT OF ERROR.

The points now made could have been made at the trial and raised on exceptions or appeal. The rule that a writ of error is not available to review such issues is founded in the high public interest in an end to litigation and the trial of issues when and where they can be properly and fully tried. Bator, Finality in Criminal Law, 76 Harv.L.Rev. 441. For the rule, see Guerin v. Commonwealth, 337 Mass. 264, 268--269, 149 N.E.2d 220. The rule was applied as to illegally seized evidence in Dirring, petitioner, 344 Mass. 522, 183 N.E.2d 300 (a petition for a writ of habeas corpus).

The Supreme Court of the United States recognizes that rules such as ours give effect to a proper State interest. In Henry v. State of Mississippi, 379 U.S. 443, 448--453, 85 S.Ct. 564, 568, 13 L.Ed.2d 408, the court said: 'The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new trial avoided.'

The policy of an end of litigation in due and usual course is stated and applied in some lower Federal courts in respect of review by habeas corpus of constitutional error in a trial in a Federal court. In Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822, 825--828, the court found no weakness in the judicial process (p. 829: no basis for claiming 'ineffective assistance of counsel') and refused the writ even though the conviction was founded on illegal search and seizure. Accord, Kuhl v. United States, 370 F.2d 20 (9th Cir.).

The petitioner, however, seeks to assimilate his case to those recent cases in which we have held that where there is a deprivation of the right to counsel and to prepare a defence, there is 'error * * * in fact' (G.L. c. 250, § 9), which could not have been raised by appeal or exceptions and the writ will lie. Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; Lindsey v. Commonwealth, 331 Mass. 1, 116 N.E.2d 691; Drolet v. Commonwealth, 335 Mass. 382, 140 N.E.2d 165; Pugliese v. Commonwealth, 335 Mass. 471, 140 N.E.2d 476; Brown v. Commonwealth, 335 Mass. 476, 140 N.E.2d 461. See Sandrelli v. Commonwealth, 342 Mass. 129, 141, 172 N.E.2d 449; Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 376, fn. 9, 203 N.E.2d 811.

RELIEF UNDER THE WRIT OF ERROR NOT TO BE

GRANTED IN THIS CASE.

A. The judicial action shown was not the primary cause of the omission complained of nor does it otherwise require postconviction relief.

The single justice found that without investigation of the law the trial attorney was not prepared to present the defence under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. He inferred that the constitutional defence ('the only strong defense') had not been prepared by the prior attorney and that, although immediate preparation had been impeded by the petitioner's nonavailability, the essential facts were known to the prior attorney from the lower cou...