Home COMMONWEALTH vs. ROBERT SHEPPARD.

5 Mass. App. Ct. 765

January 5, 1977

1. There was no error in the admission of either of the items of evidence objected to at the pre-trial hearing on the defendant's motion to suppress. The defendant had demonstrated the existence of a misstatment of fact in that portion of the affidavit forming a part of the application for the search warrant which was addressed to the credibility or reliability of the affiant's informant (see Commonwealth v. Snow, 363 Mass. 778 , 782-783 [1973]; Commonwealth v. Vynorius, 369 Mass. 17 , 20, 21 [1975]), and both items of evidence were relevant to and admissible on the question whether the misstatement had resulted (a) from deliberate (see Commonwealth v. Perez, 357 Mass. 290 , 301 [1970]; Commonwealth v. Murray, 359 Mass. 541 , 547-548 [1971]; Commonwealth v. Kinnitt, 2 Mass. App. Ct. 810 [1974]; Commonwealth v. Gill, 2 Mass. App. Ct. 653 , 655, n.2 [1974]) or reckless (see Commonwealth v. Rugaber, 369 Mass. 765 , 767, 769 [1976]) action on the part of the affiant or (b) from an inadvertency on his part which was unrelated to any intention to deceive the magistrate (see Commonwealth v. Gallinaro, 360 Mass. 868 , 869 [1971]). 2. The judge did not err in denying the motion to suppress. His findings that the misstatement was (a) "not a deliberate falsehood, but rather an honest mistake," (b) "[the] result of negligence" (see Commonwealth v. Rugaber, 369 Mass. at 767), and (c) "not intentional" were amply supported by the evidence. Compare Commonwealth v. Gallinaro, 360 Mass. at 869. The misstatement did not go to the integrity of the affidavit as a whole or destroy probable cause for a search (Commonwealth v. Murray, 359 Mass. at 548), and we concur in the judge's opinion that "the prophylactic value of excluding evidence in this case . . . [would be] nil." See Commonwealth v. Rugaber, 369 Mass. at 769. Compare United States v. Belculfine, 508 F. 2d 58, 61-62 (1st Cir. 1974), which was cited by the judge. 3. As was conceded at the oral argument, none of the remaining assignments of error has been "argued" within the meaning of Rule 1:13 of this court, as amended effective February 27, 1975, 3 Mass. App. Ct. 801 (1975). There is no assignment of error addressed to the sufficiency of the affidavit on its face.

Judgment affirmed.

Home WILLIAM FLAHERTY vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

5 Mass. App. Ct. 765

January 13, 1977

This is an action to recover for personal

Page 766

injuries sustained when the plaintiff stepped on a bottle and fell at the defendant's elevated station. The judge did not err when he allowed the defendant's motion for a directed verdict. There was insufficient evidence to warrant the submission of the case to the jury on the issue whether the bottle was present for such a length of time that the defendant's employees, in the exercise of reasonable care, should have discovered and removed it. Oliveri v. Massachusetts Bay Transp. Authy. 363 Mass. 165 , 166 (1973). There was nothing to show that the bottle was seen by, or was in plain view of, any employee of the defendant. Id. at 167. Contrast Foley v. F. W. Woolworth Co. 293 Mass. 232 , 234 (1936); Gallagher v. Stop & Shop, Inc. 332 Mass. 560 , 563-564 (1955); Young v. Food Fair, Inc. 337 Mass. 323 , 324-325 (1958). Nor was there any evidence concerning the peculiar condition of the bottle which would have permitted an inference as to the length of time it had lain on the ramp in the MBTA station. Contrast, e.g., Anjou v. Boston Elev. Ry. 208 Mass. 273 , 274 (1911). Because it was entirely speculative whether the bottle had lain on the ramp of the MBTA station for one minute or one day, the judge properly allowed the defendant's motion for a directed verdict. Goddard v. Boston & Maine R.R. 179 Mass. 52 (1901). See and compare DiAngelo v. United Mkts. Inc. 319 Mass. 143 , 145 (1946). The plaintiff testified as to the presence of debris at the station both on the day in question and on the previous day. Without deciding whether the testimony was properly admitted, we conclude that it did not, of itself, warrant a finding that the bottle over which the plaintiff tripped had lain there long enough for the defendant's employees to have discovered and disposed of it. See Fine v. F. W. Woolworth Co. 343 Mass. 328 , 329 (1961), and cases cited. Contrast Hastings v. Boston & Maine R.R. 332 Mass. 42 , 43 (1954).

Judgment affirmed.