COMMONWEALTH vs. PAUL F. MCGAFFIGAN (and three companion cases [Note 1]).

KIRK, J. Each of the defendants was indicted, tried and found guilty on two indictments, one charging possession of burglarious implements, the other charging breaking and entering a building in the nighttime with intent to commit larceny. The cases were tried under G. L. c. 278, Sections 33A-33G, and are before us on appeals accompanied by assignments of error which are the same for each defendant and apply to all of the indictments.

On March 20, 1966, about 4:20 A.M. the defendants and a third individual were observed by two police officers, Noseworthy and Stearns, as the defendants were lowering a bulkhead door which was used to secure the entrance to the cellar of a cafe on Joiner Street in Charlestown. The third individual had a tire wrench in his hand which he dropped as the police approached. One section of the bulkhead door had been ripped apart. The three men were arrested. Officer Stearns, the arresting officer, told the defendants that he wanted no statement from them and that they had a right to remain silent. A fourth individual was found in the cellar. [Note 2] At the station house the men were put in cells. At 7 A.M. they were taken to police headquarters at Boston where they were fingerprinted. At 11 A.M. the defendants were released on bail. At no time from their arrest to the time of trial were the defendants interrogated. Nor did they make any statements to the police. They were represented by counsel at the hearing on probable cause.

On May 25, 1966, a "Motion for Appropriate Relief" [Note 3] was filed on behalf of each defendant. The motions, in substance, asked that the indictments be dismissed on the ground that the right of each defendant "to make a phone call and his right to communicate with friends or counsel guaranteed by" G. L. c. 276, Section 33A, art. 12 of the Declaration of Rights of the Constitution of the Commonwealth, and the Sixth and Fourteenth Amendments to the Constitution of the United States were violated. In supporting affidavits

Page 334

accompanying the motions, the defendants contended that because they were unable to use the telephone upon their arrest, they were harmed in the preparation of their defence. The only harm alleged is that the defendants were unable at 4:30 A.M. to start an investigation to get the names and addresses of witnesses, alleged to have been present at the scene of the arrest, who might have helped in the defence of the cases.

A voir dire was held on the motions early in the trial. McGaffigan testified that upon his arrival at the police station he was asked to sign "something" about a telephone call. He declined to do so because he was "intoxicated." Upon his refusal to do so, he was told that he could not make a telephone call. Whouley testified that although he did sign a paper as requested, he was denied the use of the telephone. The paper which he admitted signing bore his signature in three places. When questioned as to how much he had been drinking, Whouley testified that he "was feeling pretty good." At the conclusion of the voir dire the judge denied the motions. After the verdicts of guilty, and the imposition of sentences on June 3, 1966, the judge, on June 14, 1966, filed findings and rulings on the motions. See Commonwealth v. Cook, 351 Mass. 231, 234. These were, in substance, that each defendant was informed of his right to use the telephone; that the "prime reason" each defendant requested use of the telephone was to be bailed; that there were no persons available who might have witnessed the defendants' movements shortly prior to their arrest; and that the one person whom the defendants recognized at the scene, and who testified at the trial, did not observe the defendants until after the police had arrived and were in the process of arresting the defendants. The judge concluded "that no prejudice resulted to either of these defendants from the denial . . . of an opportunity to use the telephone at the police station, and that any delay resulting therefrom was not productive of any harm to either of them."

We find nothing in the assignments of error which requires reversal of the judgments.

Page 335

1. Assignments 1, 2 and 4 relate to the judge's refusal to dismiss the indictments against the defendants. The defendants contend that although it may be conjectural whether witnesses could be found, the denial of their constitutional rights (the Sixth and Fourteenth Amendments to the Constitution of the United States, and art. 12 of the Declaration of Rights of the Constitution of our Commonwealth) and their statutory right (G. L. c. 276, Section 33A [Note 4]) requires directed verdicts without a showing of prejudice.

The contention is without merit with respect to the defendants' Federal constitutional rights. The argument was raised and was rejected in Crooker v. California, 357 U.S. 433, 438-441, by the Supreme Court of the United States: "In the absence of any confession, plea or waiver -- or other event prejudicial to the accused -- such a doctrine would create a complete anomaly . . .." 357 U.S. at 440.

The defendants' contention is also without merit with respect to our own constitution. This court has held in largely similar circumstances that the use of the telephone by a person in custody is not a right guaranteed by art. 12 of the Declaration of Rights of the Constitution of our Commonwealth. Commonwealth v. Mangan, 293 Mass. 531. Although that decision was rendered prior to the enactment of St. 1945, c. 205 (the original predecessor of G. L. c. 276, Section 33A), neither the original nor the amended statute affects the holding or underlying reasoning in the Mangan case. A statute may be enacted to aid in the enforcement of a constitutional right, but it is not a vehicle for the creation of a new constitutional right.

Nor do we think that in the circumstances of these cases the violation of G. L. c. 276, Section 33A, entitles the defendants

Page 336

to directed verdicts. No penalty or other sanction is imposed for a violation of the statute. Under similar statutes in other jurisdictions, the officer who violates the statute commits a misdemeanor. See, e.g., Alaska Sts. Section 12.25.150; Cal. Penal Code Ann. Section 851.5 (Deering); Iowa Code Section 755.17; Mo. Rev. Sts. Section 544.170; N.H. Rev. Sts. Ann. Section 594:15-17; N.C. Gen. Sts. Section 15-47; Ohio Rev. Code Section 2935.14 (Baldwin). We have found no statute which, having provisions similar to G. L. c. 276, Section 33A, does not also provide for a penalty.

Notwithstanding the absence of any express penalty in our statute, we said in Commonwealth v. Bouchard, 347 Mass. 418, 421: "Violation of Section 33A, if productive of harm . . . might be ground for sustaining exceptions, but should not entitle the defendant to a directed verdict of acquittal." What we said in the Bouchard case, however, is not applicable to the cases now before us. The trial judge justifiably found that the defendants were not harmed by the violation of G. L. c. 276, Section 33A. It follows that their motions for directed verdicts on this ground were properly denied. See Commonwealth v. Bouchard, 347 Mass. 418.

2. Other assignments of error require no extended comment.

The defendants assign as error the judge's refusal to admit in evidence the testimony of Officer Noseworthy as to what he observed at the same time an observation had been made by Officer Stearns (assignment 3). We need not discuss whether the testimony was properly excluded. The transcript shows that the excluded line of questioning was later pursued without objection and that Officer Noseworthy testified to what his first observations were, which observations occurred "approximately the same point where Officer Stearns said he first observed these men."

Assignment 5 relates to the denial of the defendants' motion for a view. Diagrams of the area were used in connection with the testimony. The denial of the motion for a view was within the judge's sound discretion which was not abused. Commonwealth v. Nassar, 351 Mass. 37, 47, and cases cited.

Page 337

Assignment 6 relates to an alleged prejudicial remark made by the prosecutor at the outset of his argument: "Mr. Foreman and gentlemen, the judge will instruct you among other points of the law, one, presumption of innocence, and the other, reasonable doubt. Might I say if there is any presumption of innocence in those defendants, don't get that mixed up with all cops are liars. Don't get that mixed up. That isn't a presumption. It shouldn't be with jurors. Maybe with some people; that is a presumption with some people." The transcript shows that much of the cross-examination of the two police officers by the defendants' counsel was intended to bring out possible inconsistencies in their testimony both as between them and as compared with the testimony of each at the probable cause hearing. The prosecutor's remarks appear intended to answer the defence counsel's argument on the issue of inconsistency and were within the bounds of legitimate argument. See Commonwealth v. Dascalakis, 246 Mass. 12, 27-28. In any event, the judge's comment in passing on the objection, and the instruction in his charge to the jury that anything said in closing arguments is not evidence, adequately cautioned the jury. See Commonwealth v. Perry, 254 Mass. 520, 531.

Judgments affirmed.