6 Mass. App. Ct. 934

October 17, 1978

The defendant has appealed (G. L. c. 278, Sections 33A-33G) from his conviction on a complaint charging possession of burglarious implements (G. L. c. 266, Section 49) and has assigned as error the denial of his motion for a finding of not guilty. The complaint was framed in the language found in G. L. c. 277, Section 79, in the indictment in Commonwealth v. Armenia, 4 Mass. App. Ct. 33 , 38-39 (1976), and in the complaint in Commonwealth v. Copeland, ante 882 (1978). We are of the opinion that on the facts the present case is governed by Copeland rather than Armenia and hold that the evidence, viewed in a light most favorable to the Commonwealth (Commonwealth v. Clifford, 374 Mass. 293 , 296 [1978]), warranted a finding of guilt.

Judgment affirmed.


6 Mass. App. Ct. 934

October 19, 1978

The trial judge should have allowed the defendant's motion to suppress articles seized under a search warrant and introduced in evidence which resulted in convictions under G. L. c. 271, Sections 17 and 17A. The affidavit, dated July 31, 1974, in support of the application for the warrant, also dated July 31, 1974, did not "provide [] the magistrate with a substantial basis for concluding that any of such articles was probably present" on the premises sought to be searched. Commonwealth v. Stewart, 358 Mass. 747 , 749 (1971). Commonwealth v. Blye, 5 Mass. App. Ct. 817 (1977). The only allegations in the affidavit with reference to those premises were that two telephone calls had been made to a telephone billed to the defendant at the address of the premises (herein referred to as the defendant's telephone), one on May 29, 1974, and one on June 13, 1974. Both calls had been made from a tapped telephone (G. L. c. 272, Section 99) assertedly used "to conduct an illegal gaming operation." The affidavit alleges that during the first telephone call, made by "Chick," a person identified as "Butch" at the defendant's telephone "placed two horse race bets with `Chick.'" In the second conversation, also initiated by "Chick," he "spoke to a man he called `Henry' [and] . . . gave Henry the results of the first race at Suffolk Downs Race Track." No other connection between the defendant and users of the tapped telephone is indicated. Whatever else the conversations may show, they cannot be said to establish a probability that the premises sought to be searched contained equipment for registering bets of conducting other gaming operations. Compare Commonwealth v. Chagnon, 330 Mass. 278 , 282-283 (1953). We need not discuss any of the other points argued by the parties as to the validity of the affidavit or of the interception under G. L. c. 272, Section 99.

Judgment reversed.

Home JEROME JOHNSON, administrator, vs. JOHN ZADWORNY, & another.

6 Mass. App. Ct. 934

October 23, 1978

This is a malpractice action, brought to recover damages for the conscious pain and suffering and death of an infant, one of twins, as a result of brain injury during his birth. The injury apparently resulted from delay in the mother's admission to the hospital

Page 935

following the rupture of the amniotic sac, during which the infant's umbilical cord prolapsed, restricting his blood supply. The delay, according to the mother's testimony, was advised by Dr. Zadworny in a telephone conversation. The latter denied that he gave such advice, agreeing with the plaintiff's medical experts that such advice, if given, would have been contrary to sound medical practice. The crucial issue in the case was, thus, whether the telephone conversation occurred and, if so, what was said. In his closing argument, the plaintiff's counsel, commenting on the standing in the medical profession of the plaintiff's expert witnesses, argued that men of such high stature would not have come to testify unless they were convinced that "a great wrong" had been done, in effect inviting the jury to infer from the mere attendance of the plaintiff's experts at the trial that the plaintiff's version of the disputed facts was truthful. The defendants' counsel rose to object and was motioned down by the judge. After the charge to the jury, the defendants' counsel asked the judge to instruct the jury that they should not draw any inference such as that contended for by the plaintiff's counsel, and he objected to the judge's refusal to give such an instruction. Neither counsel had questioned the experts concerning their motives or compensation for testifying. While we have found no case precisely on point, we feel that the plaintiff's argument was improper and that the defendants were entitled to an instruction that it be disregarded. Compare Commonwealth v. Shelley, 374 Mass. 466 , 470 (1978). Nothing in the general instructions served that purpose, and we are unable to conclude on the whole record that the error was harmless.

Judgment reversed.

BROWN, J.(dissenting). I cannot agree with the majority. The plaintiff's remarks in closing argument were better left unsaid, but, in my opinion, do not in these circumstances warrant ordering a new trial. See generally Commonwealth v. Fitzgerald, 376 Mass. 402 , 416-424 (1978). Even if we assume the reference to the medical experts was improper, the general instructions were adequate to sufficiently negate any prejudice. Cf. id. at 424.