414 Mass. 1006

March 3, 1993

Richard J. Shea for the defendant.

Elspeth B. Cypher, Assistant District Attorney, for the Commonwealth.

A judge in the Superior Court denied the defendant's motion to suppress the fruits of an intercepted conversation between the defendant and his wife. The intercepted conversation was used to demonstrate probable cause in an affidavit in support of an application for a second wiretap order. The second wiretap order led to evidence implicating the defendant in cocaine trafficking. We transferred the defendant's appeal to this court on our own motion. We affirm the order denying the motion to suppress.

By statute, private conversations between a husband and a wife are disqualified and, hence, "neither husband nor wife shall testify as to such private conversations." G. L. c. 233, Section 20 (1990 ed.). The wiretap statute, G. L. c. 272, Section 99 D 2 e (1990 ed.), provides that no privileged intercepted wire communication "shall lose its privileged character."

Assuming, without deciding, that the intercepted conversation was privileged, there was a sufficient showing of probable cause without considering any part of the conversation between the defendant and his wife to support the second wiretap order. Accordingly, the fruits of the second wiretap were properly obtained and the judge's denial of the motion to suppress was not in error.

Judgment affirmed.


414 Mass. 1006

March 11, 1993

Catherine E. Sullivan, Assistant District Attorney, for the Commonwealth.

Peter G. DeGelleke for the defendant.

The narrow issue here is whether a Superior Court judge erred in allowing the defendant's amended motion for a new sentencing hearing on the conviction of murder in the second degree based on a claim of ineffective assistance of counsel at sentencing. We hold that there was error.

Page 1007

In 1978, after a plenary review of the record under G. L. c. 278, Section 33E, this court affirmed the defendant's conviction of murder in the second degree but directed that the sentence on the armed assault in a dwelling charge be vacated and a new sentencing hearing be held. The trial judge had imposed a sentence of life imprisonment for the armed assault charge to be served from and after the sentence of life imprisonment for murder in the second degree. See Commonwealth v. Stewart, 375 Mass. 380 (1978) (Stewart I). The defendant was resentenced and the sentence of life imprisonment on the armed assault was ordered to be served concurrently with the sentence on the murder conviction. At the time of sentencing, the defendant was serving prison sentences in New Hampshire and his Massachusetts sentences were ordered to be commenced from and after the New Hampshire sentences.

Following our review in Stewart I, the defendant brought several postconviction motions by lawyers other than trial counsel seeking relief for assorted reasons over a period of thirteen years. Stewart v. Commonwealth, 413 Mass. 664 (1992). Stewart, petitioner, 411 Mass. 566 (1992). Stewart v. Superintendent, Southeastern Correctional Ctr., 24 Mass. App. Ct. 1113 (1987) (unpublished memorandum and order). Stewart v. Commissioner of Correction, 16 Mass. App. Ct. 57 (1983). In none of these proceedings did he ever suggest ineffective assistance of counsel at his original sentencing hearing. He now asserts his ineffective assistance claim because his counsel did not ask that the defendant's Massachusetts sentences run concurrently with the sentences that he was serving in New Hampshire, a disposition almost unknown at that time.

We have acknowledged the right of a defendant to effective assistance of counsel in the sentencing phase of a case especially in regard to a request for concurrent sentences. See Osborne v. Commonwealth, 378 Mass. 104 , 113-115 (1979). See also Commonwealth v. Lykus, 406 Mass. 135 , 144-146 (1989). In the present case, the judge, without an evidentiary hearing, ordered resentencing on the convictions of both murder in the second degree and armed assault in a dwelling based on the affidavit of trial counsel who represented the defendant at his sentencing in 1974. In his affidavit, trial counsel conceded that he failed to argue for sentences to run concurrently with those the defendant was serving in New Hampshire. He further stated that he did not bring to the trial judge's attention the defendant's agreement of cooperation with the United States government because he was not privy to its details. Additionally, he thought it would be dangerous to make known the defendant's cooperation in open court.

The judge erred in granting relief because the defendant clearly waived such consideration by his failure to raise it in any one of the proceedings over the thirteen-year period in which he tirelessly pressed other issues. See Mass. R. Crim. P. 30 (c), 378 Mass. 900 (1979). He is required to "present all his claims of error at the earliest possible time." Commonwealth v. Pisa, 384 Mass. 362 , 365-366 (1981).

Page 1008

There is no merit to the defendant's claim that the Commonwealth's appeal was untimely because we addressed that issue and ruled against the defendant in Stewart v. Commonwealth, 413 Mass. 664 , 666 (1992).

Accordingly, we reverse the order of the motion judge.

So ordered.