Opinion
19-P-1015
10-02-2020
COMMONWEALTH v. ALIDIO BARBOSA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Alidio Barbosa, was convicted in the Superior Court of unlawful possession of a firearm as an armed career criminal with one predicate offense, unlawful possession of a loaded firearm, and unlawful possession of a large capacity feeding device. On appeal, the defendant argues that his motion to suppress the firearm seized from his codefendant was erroneously denied and that his motion for a required finding of not guilty at trial should have been allowed. The defendant further challenges the admission of gang-related testimony by police officers during trial and the sufficiency of the evidence to convict him as an armed career criminal. We affirm.
Background. 1. Motion to suppress. After an evidentiary hearing on the motion to suppress, the motion judge found the following facts. On September 11, 2017, Boston Police Officers Diamantino Araujo, John Alves, and Emanuel Canuto, in plainclothes in an unmarked vehicle, observed the defendant walking with two other individuals on Dudley Street. Araujo recognized the defendant and one of his companions. Upon noticing the officers, the three individuals immediately entered a pizza shop. Within seconds, one of them (the one Araujo did not recognize) exited the shop and began walking in the same direction from which he originally came. Araujo saw this individual, later identified as codefendant, Joao Fernandes, do a "security check" -- which Araujo defined as a check to see if an unholstered weapon is still there -- of the waist area of his pants as he was walking.
Fernandes quickly turned right onto West Cottage Street, looked back at the officers, grabbed his waist area, and began running. The officers followed Fernandes in their vehicle, and when Fernandes attempted to reverse direction, they left their vehicle, identified themselves, and ordered Fernandes to the ground. Alves pat frisked Fernandes and recovered a firearm from his waistband. The officers then obtained security video footage from the pizza shop, which was introduced as an exhibit at the suppression hearing and at trial.
2. Trial. The evidence admitted at trial was consistent with the evidence at the motion to suppress hearing. Additional evidence introduced at trial, viewed in the light most favorable to the Commonwealth, was as follows. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The firearm seized from Fernandes was loaded with .40 caliber ammunition, with one round in the chamber and seventeen rounds in the magazine. During Fernandes's booking process, a black ski mask was found "stuffed in his waistband and groin area."
The security footage showed the defendant handing a black object to Fernandes, which Fernandes inserted in his waist. Fernandes immediately left the shop; the defendant left moments later, looked around, and began running in the opposite direction, despite having a broken foot.
The police obtained a warrant to arrest the defendant. Numerous rounds of .40 caliber ammunition, matching the ammunition in the firearm seized from Fernandes, were found in the defendant's bedroom. The trial judge instructed the jury to limit their consideration of this evidence to the defendant's state of knowledge to whether the firearm recovered from Fernandes was loaded.
The warrant also authorized the search of the defendant's residence; however, at the defendant's request, this fact was not disclosed to the jury.
3. Armed career criminal trial. The defendant waived his right to a jury trial on the armed career criminal portion of the indictment. A Boston police officer testified that on October 30, 2014, first a bus driver, then a woman in a car, alerted him and his partner that a man riding a scooter pointed a gun at them in traffic. The suspect was identified as the defendant. Although a firearm was never recovered, the defendant was arrested for assault by means of a dangerous weapon, a gun. He pleaded guilty and was adjudicated delinquent. A certified copy of his adjudication of delinquency for assault by means of a dangerous weapon was admitted in evidence. Based on this predicate offense, the judge found the defendant to be an armed career criminal under G. L. c. 269, § 10G (a).
Discussion. 1. Motion to suppress. In reviewing a denial of a motion to suppress, we accept the motion judge's findings of fact, absent clear error, and independently review the judge's application of constitutional principles. See Commonwealth v. Pinto, 476 Mass. 361, 363 (2017); Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). However, where the motion judge's factual findings are premised on audio or video recordings in the record, "we are in the same position as the [motion] judge," and may independently review the recording to make factual findings and legal conclusions. Commonwealth v. Clarke, 461 Mass. 336, 341 (2012), quoting Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995).
Assuming without deciding that the defendant has standing to challenge the constitutionality of the stop and patfrisk of Fernandes's waistband, see Commonwealth v. Amendola, 406 Mass. 592, 601 n.4 (1990) (limiting doctrine of automatic standing to house and automobile searches), we conclude that the officers' actions were justified.
An investigatory stop is permissible only upon reasonable suspicion. "Reasonable suspicion exists when an officer, based on specific, articulable facts and reasonable inferences therefrom, in light of the officer's experience, has reasonable grounds to suspect 'a person is committing, has committed, or is about to commit a crime.'" Pinto, 476 Mass. at 363-364, quoting Commonwealth v. Gomes, 453 Mass. 506, 511 (2009). A patfrisk is justified only when police have reasonable suspicion that the subject is armed and dangerous. Gomes, supra at 512. "[A] combination of factors that are each innocent of themselves may, when taken together, amount to the requisite belief." Commonwealth v. Philips, 452 Mass. 617, 626 (2008), quoting Commonwealth v. Fraser, 410 Mass. 541, 545 (1991).
The motion judge determined that the following facts, known to the officers at the time of the stop, provided reasonable suspicion: (1) the defendant had prior arrests and was affiliated with a Cape Verdean gang; (2) the individuals were walking down Dudley Street, a high crime area known to have considerable Cape Verdean gang violence; (3) the defendant did not acknowledge the officers upon making eye contact with them, which was unusual behavior compared to his usual friendliness with Araujo; (4) the individuals went quickly into a pizza shop immediately after seeing the police, and Fernandes exited the shop nearly immediately and began walking toward the direction the men originally came; (5) Fernandes slightly bumped into another person while walking and reached to his right waistband to do a "security check"; (6) Fernandes grabbed his waistband and began running away from the officers while turning right onto West Cottage Street; and (7) Fernandes continued to run while holding his waistband until he was captured.
The motion judge considered the high crime area as one of many factors combining to create reasonable suspicion. See Commonwealth v. Meneus, 476 Mass. 231, 238 (2017); Gomes, 453 Mass. at 511. But even if we do not consider this factor in our analysis, see Commonwealth v. Evelyn, 485 Mass. 691, 709-710 (2020), we conclude the other evidence established a reasonable, articulable suspicion.
The defendant argues, based on the security footage, that the finding that Fernandes performed a "security check" is clearly erroneous. Based on our independent review of the security footage, we are not persuaded. The video shows Fernandes from the back, and it is not clear what he was doing with his right hand around the time he bumped into another individual on the sidewalk and they exchanged a left-handed greeting. Moreover, nothing in the record contradicts the judge's further finding that Fernandes subsequently grabbed and held his waistband as he ran from the police.
Fernandes's ducking in and out of the pizza shop, his rapid reversals of direction, his check of his waistband, and his flight from the police while holding his waistband provided reasonable suspicion for the stop order and subsequent patfrisk. See Commonwealth v. Garcia, 88 Mass. App. Ct. 307, 312 (2015) ("the suspicious way the defendant held his waistband, the location in which he was walking, and his turning away from the police when they approached him were sufficiently suspicious, when combined with his flight, to provide the police the reasonable suspicion based on articulable facts that a crime was afoot necessary to stop the defendant"); Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 583 (2009) (police officer's training and experience warranted belief that defendant was armed and dangerous when he grabbed his waistband as he ran).
2. Sufficiency of the evidence. The defendant argues that the security footage was inconclusive and tended to equally establish that he either passed a ski mask or a firearm to Fernandes inside the pizza shop. Therefore, he contends, the conviction was based solely on speculation and consciousness of guilt evidence, and his motion for a required finding should have been allowed.
In reviewing the sufficiency of the evidence, we ask whether any rational trier of fact could find proof, beyond a reasonable doubt, of each essential element of the offense charged, viewing the evidence in the light most favorable to the Commonwealth. See Latimore, 378 Mass. at 677-678. Circumstantial evidence and reasonable inferences drawn from that evidence may suffice to support a conviction. See Brown v. Commonwealth, 407 Mass. 84, 85 (1990). Evidence that rests upon mere speculation cannot. See Commonwealth v. Lovering, 89 Mass. App. Ct. 76, 77 (2016). See also O'Laughlin v. O'Brien, 568 F.3d 287, 301 (1st Cir. 2009), quoting United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995) (evidence not legally sufficient if, when viewed in light most favorable to Commonwealth, it "gives equal or near equal circumstantial support to a theory of guilt and a theory of innocence").
To support the defendant's conviction of unlawful possession of a firearm, "the Commonwealth must prove beyond a reasonable doubt that the defendant actually or constructively possessed the firearm." Commonwealth v. Hubbard, 69 Mass. App. Ct. 232, 237 (2007). The Commonwealth proceeded on a theory of actual possession, which required proof that the defendant "had more than momentary possession of a working firearm." Commonwealth v. Ashley, 16 Mass. App. Ct. 983, 983 (1983).
Thus, the Commonwealth was required to prove, beyond a reasonable doubt, that the defendant possessed the firearm in the pizza shop prior to passing it to Fernandes. The security footage shows the defendant passing a black object to Fernandes, who places the object in his waistband. While it is not completely clear that the object was the firearm, other evidence supports the inference that it was. The exchange was in response to seeing police officers nearby. Immediately after the exchange, Fernandes and the defendant fled in opposite directions. Fernandes appeared to be concealing a firearm as he walked away, and officers recovered the firearm as soon as they apprehended him. The defendant ran away despite having a broken foot. The jury could reasonably conclude that the defendant possessed the firearm before it was recovered from Fernandes. The judge did not err in denying the motion for a required finding.
The ski mask was not discovered until later, at the police station, "stuffed" in Fernandes's "groin area," permitting the inference that Fernandes had secreted the mask in his pants prior to placing the object he received from the defendant in his waistband.
3. Gang-related testimony. At trial, four Boston police officers testified, by way of introduction, that they were members of either the department's "gang unit" or "Youth Violence Strike Force." Defense counsel did not object; therefore, we must determine whether the testimony was improper, and if it was, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Wilson, 441 Mass. 390, 399 (2004).
We agree that the officers' assignments to these units were not relevant to the trial and should have been omitted, but we discern no prejudice, let alone a substantial risk of a miscarriage of justice. These were isolated statements regarding the officers' backgrounds, there was no evidence indicating or implying the defendant or his companions were gang members, and the prosecution made no mention of gang membership during the closing argument. See Wilson, 441 Mass. at 399-400 (although officer's testimony that he was member of "gang unit" was "irrelevant and should not have been admitted," no substantial risk of miscarriage of justice). Unlike in Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 210 (1990), the evidence did not make an "unspoken appeal to fears of gang violence and to latent prejudice and xenophobia."
The evidence that Araujo recognized the defendant and one of his companions was relevant, however, as it served to explain their evasive actions after they spotted the officers.
4. Armed Career Criminal Act. The so-called Armed Career Criminal Act (ACCA), G. L. c. 269, § 10G, enhances the sentence of defendants with previous convictions for "violent crimes" and "serious drug offenses." The term "violent crimes," as it is used in the ACCA, is defined by G. L. c. 140, § 121. Relevant here, this definition limits the application of the ACCA to acts of "juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult, that . . . has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another." G. L. c. 140, § 121.
See Commonwealth v. Baez, 480 Mass. 328, 333 (2018) (Gants, C.J., concurring) (noting that statute does not use words "armed career criminal").
In Commonwealth v. Rezendes, 88 Mass. App. Ct. 369, 377 (2015), this court determined that a juvenile adjudication for assault and battery by means of a dangerous weapon must include use of an "inherently deadly" weapon to qualify as a predicate offense for the purposes of the ACCA. For a weapon to qualify as inherently deadly, the Commonwealth must be able to prove that the weapon used is deadly without inquiring into the manner in which it was used. Id. at 379. Although the court stated in dicta that the category of inherently deadly weapons includes "loaded firearms, certain knives, and explosive devices" (emphasis added), id. at 380 n.14, we do not read this footnote as suggesting that a gun does not qualify as a "deadly weapon" under the ACCA if it is unloaded.
A certified record of an adjudication can prove that a defendant committed a qualifying offense "only where all crimes encompassed within that statute are violent crimes." Commonwealth v. Wentworth, 482 Mass. 664, 676 (2019). Where, as here, the predicate conviction "is based on a 'broad statute that encompasses multiple crimes,'" a judge may use the "modified categorical approach" to determine if the predicate offense qualifies under the ACCA. Id. at 672, quoting Commonwealth v. Eberhart, 461 Mass. 809, 816 (2017). See Rezendes, 88 Mass. App. Ct. at 379 n.12. Under the "modified categorical approach," the fact finder is permitted to consider additional evidence outside of the mere elements of the offense to determine whether it was a "violent crime." Wentworth, supra at 672. The Commonwealth is not required to retry the predicate offense; it need only prove which statutory or common law definition was basis of the prior conviction. See id. at 676; Eberhart, supra at 816.
The Commonwealth's evidence sufficed to prove that the defendant's prior juvenile adjudication for assault by means of a dangerous weapon involved an inherently deadly weapon. The arresting officer testified that two different individuals told him that the defendant pointed a gun at them in traffic. The defendant was charged with assault by means of a dangerous weapon, "[a] gun," and a certified copy of his adjudication of delinquency was admitted in evidence. Although a firearm was never recovered, the defendant entered a plea and was adjudicated delinquent based on allegations of a firearm being displayed. The evidence was sufficient to permit the judge to conclude beyond a reasonable doubt that the predicate offense involved the use of a deadly weapon. See Commonwealth v. Furr, 58 Mass. App. Ct. 155, 157 (2003) (determining that "armed carjacking, kidnapping and assault and battery [by means of] a dangerous weapon," involving "the display of a firearm, a deadly weapon," qualified as "violent crime[s]").
Judgments affirmed.
By the Court (Blake, Massing & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 2, 2020.