Opinion
No. 10–P–1834.
2013-01-11
COMMONWEALTH v. Marques GREEN.
By the Court (RAPOZA, C.J., TRAINOR & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of unlawful possession of a firearm (two counts) and unlawful possession of ammunition. The defendant then entered three guilty pleas of being a prior offender under G.L. c. 269, § 10G( b ). The defendant appealed, and also filed a motion for a new trial based on ineffective assistance of counsel. The motion was denied by the trial judge without an evidentiary hearing, although the defendant had requested one. The defendant's direct appeal and his appeal from the denial of his new trial motion were consolidated. We affirmed the judgments,
but because we concluded that the defendant's claim of ineffective assistance of counsel could not be evaluated without an evidentiary hearing, we vacated the denial of the new trial motion and remanded the case to the Superior Court for further proceedings.
The judgments were affirmed in an unpublished decision pursuant to our rule 1:28. See Commonwealth v. Green, 74 Mass.App.Ct. 1110 (2009). The procedural background and facts of the case are set forth in that memorandum and order and need not be repeated here.
We explained our reasons for remanding the case as follows. In his motion for a new trial, the defendant argued that his attorney was ineffective for failing to file a motion to suppress the firearms and ammunition upon which his convictions were based. Trial counsel did not file a motion to suppress before trial because pretrial discovery indicated that the firearms and ammunition, which were found in a case labeled “two pistol case” on the front passenger seat of the car the defendant had been driving, were seized during a valid inventory search.
At trial, however, the officer who seized the evidence testified that he discovered the firearms and ammunition during a protective sweep—at a time when the defendant was handcuffed and confined in a police cruiser. Based on the Supreme Judicial Court decision in Commonwealth v. Pagan, 440 Mass. 62, 67 (2003), we concluded that is was possible that a protective search was not permissible and, therefore, trial counsel's “failure to pursue suppression at this point in the proceedings may have constituted ‘behavior ... falling measurably below that which might be expected from an ordinary fallible lawyer.’ Commonwealth v. Saferian, 366 Mass. [89, 96 (1974) ].” We also observed, however, that even if a motion to suppress had been filed, the Commonwealth could have argued (as it did on appeal) that an inventory search would have uncovered the contraband in any event, and therefore the doctrine of inevitable discovery would have justified an otherwise illegal seizure. Because the record was silent as to whether the prerequisites of a proper inventory search would have been established, we remanded the case for an evidentiary hearing.
Upon remand, the trial judge held a hearing, but no evidence was presented by the defendant or the Commonwealth. Apparently, despite our recommendation, the parties agreed there was “no necessity” for an evidentiary hearing. After argument, the judge denied the motion in a well-reasoned memorandum of decision in which he concluded that the seizure of the firearms and ammunition was lawful. Based on the evidence that had been presented at trial, the judge determined that the search of the car was justified either as an “investigatory” search or as an “inventory” search. Consequently, he concluded that a timely filed motion to suppress would not have been successful. In a subsequent memorandum of decision addressing the defendant's motion to reconsider the denial of his new trial motion, the judge, relying on Commonwealth v. Comita, 441 Mass. 86, 91–93 (2004), further explained that the defendant had the burden of proving that the Commonwealth would not have been able to prove that the inventory search was valid.
The judge did not err or otherwise abuse his considerable discretion in denying the motion for new trial. See, e.g., Commonwealth v. Moore, 408 Mass. 117, 125 (1990). To the contrary, the judge correctly applied the reasoning of Comita, supra, in determining that the defendant failed to establish that the Commonwealth would not have met its burden of proving that the firearms and ammunition inevitably would have been discovered during a properly executed inventory search. The defendant's argument that a motion to suppress would have been successful because the Commonwealth failed to produce a copy of the Springfield police department's written inventory policy misses the mark. In the circumstances presented here, that is, a new trial motion based on ineffective assistance of counsel, the Commonwealth did not have the burden of proving a written policy existed. See ibid. Rather, the defendant had the burden of showing that the Commonwealth could not produce a valid written inventory policy.
Given our conclusion, we need not address whether the defendant demonstrated that the Commonwealth would not have been able to establish that the firearms and ammunition were lawfully seized during a (constitutional) protective sweep of the car.
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.