Opinion
12-P-1883
07-06-2017
COMMONWEALTH v. Melvin JACKSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Melvin Jackson, was found guilty of possession of a firearm without a license in violation of G. L. c. 269, § 10(a ), as a level III armed career criminal under G. L. c. 269, § 10G(c ) ; possession of ammunition without a firearm identification card, G. L. c. 269, § 10(h ) ; possession of a firearm with ammunition, G. L. c. 269, § 10(n ) ; and possession of a large capacity feeding device, G. L. c. 269, § 10(m ). On appeal, the defendant argues that (1) it was error to deny his motion to suppress the firearm recovered during his arrest because the police did not have reasonable suspicion to seize him; (2) the Commonwealth made improper statements during its closing argument; (3) his trial counsel was ineffective; (4) the trial judge erred in denying the defendant's motion for a required finding of not guilty, because the evidence was insufficient to prove the defendant possessed the firearm; (5) the defendant's convictions of possession of a firearm and possession of a large capacity feeding device were duplicative; (6) the trial judge erred in denying his motion for a required finding of not guilty of being an armed career criminal, because the defendant's prior conviction of assault by means of a dangerous weapon does not qualify as a "violent crime" under the Massachusetts Armed Career Criminal Statute ( G. L. c. 269, § 10G [c ] ), and because the evidence was insufficient to prove that he committed the other prior violent crimes introduced at trial. For the reasons that follow, we affirm.
The defendant was convicted on the firearms charges in January, 2011 (the conviction under G. L. c. 269, § 10 [h ], was dismissed on the Commonwealth's motion). He was tried and convicted on the armed career criminal charge in March, 2011. Following the latter conviction, the defendant filed a notice of appeal and a motion for a new trial. The appeal was stayed in order to allow the defendant to pursue a new trial. In April, 2015, the motion judge (who was also the judge at both trials) issued a decision on the motion for a new trial, ordering that the defendant be resentenced as a level II armed career criminal, but denying the rest of the motion. The defendant appealed. In March, 2016, this court ordered the appeal from the partial denial of the defendant's new trial motion to be consolidated with the defendant's direct appeal.
Suppression hearing. After an evidentiary hearing on the defendant's motion to suppress, the motion judge made the following findings of fact. On October 12, 2009, Boston police Officer Javier Velasquez was on patrol in Roxbury. He was in uniform and driving an unmarked police cruiser. At approximately 3:00 A.M. , Officer Velasquez received a radio call informing him that the police department's gunshot monitoring system had detected gunshots near the corner of Cedar and Highland Streets. As he drove toward the area, he learned that other officers had already stopped a suspect near the corner of Cedar and Highland Streets and were searching for a discarded firearm. Officer Velasquez continued patrolling the area, turning off his headlights to avoid detection. As he drove down Rockledge Street, he noticed the defendant walking down the street, holding his right hand near his waist. Officer Velasquez did not recognize the defendant or have any information connecting him to the earlier shots fired call; however, from his experience in the military, he knew that most people carry concealed weapons loosely on their persons, and tend to clutch the weapon as they walk. Officer Velasquez decided to follow the defendant in his car. As the defendant reached Thornton Street, he turned his head and noticed Officer Velasquez's car. The defendant began walking faster, but continued to clutch his right hand tightly to his body. The defendant turned right onto Logan Street, and Officer Velasquez continued to follow him. Suddenly, the defendant darted into the driveway of 25 Logan Street. Without turning on his headlights or activating his blue lights, Officer Velasquez parked his car and followed the defendant on foot down the driveway. The officer used his portable radio to broadcast his position and a description of the defendant, but did not speak to the defendant. The defendant reached the end of the driveway and attempted to scale a chain link fence bordering the campus of the Nathan Hale School, but got caught in the fence. Officer Velasquez continued to approach the defendant. When the officer was about ten yards away, he noticed the defendant holding a silver object in his hand. Believing it to be a firearm, the officer moved to the house for cover and drew his service weapon. The defendant finished scaling the fence and entered the school property. By this time, other officers had responded to Officer Velasquez's call. One of them, Officer Joseph Dominguez, heard noises and climbed a set of stairs in front of the school. There, Officer Dominguez spotted the defendant holding a silver firearm in his hand. Officer Dominguez shone a flashlight at the defendant, drew his service weapon, and ordered the defendant to drop the firearm. The defendant stopped in his tracks, paced back and forth as if to find an escape route, then turned his body and tossed the firearm over a fence. Officer Dominguez arrested the defendant and asked him why he tossed the firearm. The defendant replied that he did not know what Officer Dominguez was talking about.
On the basis of these factual findings, the motion judge ruled that the defendant was not "seized" until Officer Velasquez drew his gun after seeing the silver object he believed to be a firearm in the defendant's hand. The judge found that at that point, Officer Velasquez had reasonable suspicion to believe the defendant was armed with an illegal gun and, thus, the seizure was proper.
Firearm possession trial. At trial, the Commonwealth presented similar evidence. Officer Velasquez testified as he had previously about following the defendant, and stated that shortly after the defendant scaled the fence into school property, he heard a voice he recognized as Officer Dominguez's shouting, "He's got a gun. Stop. Drop it." Officer Eliseo Marrero, who also responded to Officer Velasquez's call, testified that while he was running toward the school, he heard a sound of metal hitting a hard surface. The sound came from his right, in the direction of Hawthorne Street. After the defendant was arrested, Officer Marrero investigated in that area and found a handgun on the street near the intersection of Cedar and Hawthorne Streets. Officer Velasquez testified that he had driven through the same intersection a few minutes earlier, and had not seen the handgun in the street. The weapon was loaded with a clip containing fifteen rounds of live ammunition.
The defendant testified that he had left a friend's house on Rockledge Street at around 3:30 a.m. that day and was carrying a silver cellular telephone in his hand. As he turned onto Thornton Street, he realized a car was following him. The defendant ran behind a house on Logan Street, scaled a fence, and ran toward the Nathan Hale School. As he rounded a corner, he saw a person with a flashlight and a gun, whom he later identified as Officer Dominguez. The defendant testified that Officer Dominguez did not tell him to drop a gun, but to relax and lie on the ground so that the police could determine whether he was the person they were looking for. The defendant also testified that, when Officer Velasquez arrived on the scene, he asked Officer Dominguez if he had seen the defendant with anything, and Officer Dominguez answered no. The defendant further testified that, while being held in a police car, he heard another officer ask Officer Dominguez why he did not shoot the defendant, to which Officer Dominguez responded, "I never seen [sic ] him with a firearm."
Armed career criminal trial. At the trial on the armed career criminal charge, the Commonwealth introduced certified copies of convictions for a Melvin Jackson, born May 20, 1980, including one conviction of assault and battery, one of assault by means of a dangerous weapon, and a third of assault and battery by means of a dangerous weapon. The Commonwealth also introduced the inmate records for Melvin Jackson, born May 20, 1980 ("pen pack"), which corroborated the conviction copies. Officer Velasquez identified the defendant as the man whom he helped arrest and testified that the defendant had given his date of birth as May 20, 1980, at booking. Officer Velasquez also identified the photograph in the "pen pack" as the defendant. Additional facts will be set forth as necessary to address the particular issues raised.
Motion to suppress. "In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Powell, 459 Mass. 572, 574 (2011) (quotations omitted). The defendant claims his seizure was unconstitutional because it occurred the moment Officer Velasquez began following the defendant down the driveway of 25 Logan Street, before the officer could have formed a reasonable suspicion regarding the defendant. We agree with the motion judge that the seizure did not occur until the moment Officer Velasquez drew his gun, signaling the defendant to stop. In the Powell case, the Supreme Judicial Court held that simply following a defendant without exercising a show of authority or commanding the defendant to stop does not constitute a seizure. Id. at 577-578. The facts of this case are nearly identical to those in Powell. The motion judge properly denied the motion to suppress.
Improper statements at closing. The defendant claims the Commonwealth improperly vouched for its witnesses during closing argument. We agree that it was improper for the Commonwealth to state that the defendant had "the most to lose," and that the police had "nothing on the line." See Commonwealth v. Kelly, 417 Mass. 266, 271-272 (1994) (improper for prosecutor to argue police witnesses were credible because they would not risk their pensions by lying). However, we conclude that the error did not make a difference in the jury's conclusions. Apart from the improper statements regarding witness credibility, the Commonwealth presented four witnesses, all of whom testified credibly and consistently in contradicting the defendant's version of the events. The handgun was also found at the site. Thus, the error was harmless.
Specifically, the defendant takes issue with the following statements by the Commonwealth:
"Four members of the Boston Police Department would have had to have lied to you in order for you to believe what [the defendant] had to say.... When you look at the issue of credibility, ladies and gentlemen, it shouldn't even be close. [The defendant] is the person who has the most to lose here. The police have nothing on the line for them, nothing at all. They just came in here and did their job that night. [The defendant] came in. He has a lot on the line. Consider that when viewing his testimony."
Ineffective assistance. A defendant claiming ineffective assistance of counsel must prove that his counsel's performance: (1) fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant alleges that his trial counsel was ineffective, because he made an improper reference to excluded evidence during his opening argument and failed to object to certain evidence introduced by the Commonwealth to prove the defendant was an armed career criminal. The ineffective assistance argument is without merit. First, we note that there was no affidavit of counsel, and an ineffective assistance claim without such an affidavit is the "weakest form of such a challenge." Commonwealth v. Taylor, 463 Mass. 857, 869 (2012) (quotation omitted). Furthermore, while trial counsel's reference to excluded evidence was improper, it did not prejudice the defendant, as it may have had strategic value by allowing the defense to insinuate that someone else was responsible for the gun, or was the person the police were looking for that night.
The defendant refers to a statement made by his trial counsel during opening argument as follows: "We will show you how the police already chased Mr. Rackley, an ‘impact’ player, somebody who they know by virtue of a very large photograph...." During a pretrial hearing, trial counsel had requested to introduce evidence at trial that Rackley, who was arrested for unlawful possession of a firearm on the same night and in the same area as the defendant, was considered by police to be an "impact player," and was shot to death months before the defendant's trial. The judge ruled that the evidence was irrelevant and inadmissible. When trial counsel nevertheless referenced Rackley during his opening argument, the judge sustained the Commonwealth's objection and instructed the defense counsel to "stick to this case."
Specifically, the defendant argues that his trial counsel failed (1) to object to Officer Velasquez's testimony that the photograph contained in the "pen pack" was of the defendant; (2) to move to redact prejudicial content from the certified docket sheets detailing the defendant's previous assault and battery cases; and (3) to object to the Commonwealth's introduction of four prior violent crime convictions at the defendant's armed career criminal trial, when the relevant statute required only three.
There is also no merit to the ineffective assistance claim based on the armed career criminal evidence. The evidence was admissible for identification purposes, was not unduly prejudicial for these purposes, and was accompanied by clarifying instructions from the judge.
The judge instructed the jury to consider the two 1999 convictions as one offense for the armed career criminal statute.
Sufficiency of evidence. In reviewing the sufficiency of the evidence, we consider "whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Woods, 466 Mass. 707, 712-713 (2014). "[T]he Commonwealth may submit a case wholly on circumstantial evidence, and inferences drawn from that evidence need only be reasonable and possible ... not necessary or inescapable." Id. at 713. At trial, Officer Velasquez testified that he saw a silver object that he believed to be a gun in the defendant's hand. Officer Dominguez also testified to seeing a silver firearm in the defendant's hand, and to yelling, "Drop it." Officer Dominguez then saw the defendant make a throwing motion, after which Officer Marrero heard the sound of metal hitting the ground near Hawthorne Street. When Officer Marrero went to Hawthorne Street, he found a firearm that Officer Velasquez did not see when driving through the same area minutes earlier. Taken together, all of this testimony forms a very strong circumstantial case against the defendant. The evidence was more than sufficient to support the defendant's convictions.
Duplicative convictions. The defendant argues that his convictions of possession of a firearm, G. L. c. 269, § 10(a ), and possession of a large capacity feeding device, G. L. c. 269, § 10(m ), are duplicative because the feeding device was attached to the handgun the police recovered, and therefore should have been treated as one "unit." We disagree. "The traditional rule in Massachusetts ... is that a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not." Commonwealth v. Vick, 454 Mass. 418, 431 (2009) (quotation omitted), citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871). As G. L. c. 269, § 10(a ), and G. L. c. 269, § 10(m ), contain elements distinct from one another, the convictions are not duplicative: section 10(a ), in contrast to § 10(m ), requires possession of a firearm, and § 10(m ), in contrast to § 10(a ), requires possession of a large capacity feeding device. The defendant's reliance on Commonwealth v. Rivas, 466 Mass. 184, 187-189 (2013), is misplaced. That case did not hold that the defendant could not be convicted of both possession of a firearm and a large capacity feeding device when the feeding device is attached to the weapon; rather, the Supreme Judicial Court ruled, based on an elements analysis of the two crimes, that possession of a firearm is a lesser included offense of possession of a large capacity weapon.
Prior violent crime convictions. Finally, the defendant claims the trial judge erred in denying his motion for a required finding of not guilty after his armed career criminal trial, because his prior conviction of assault by means of a dangerous weapon does not qualify as a "violent crime" for the purposes of the armed career criminal statute. This argument is meritless. General Laws c. 269, § 10G(c ), incorporates the definition of "violent crime" from G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8, as "any crime punishable by imprisonment for a term exceeding one year ... that (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another...." Assault by means of a dangerous weapon is, by its nature, the "attempted use or threatened use of physical force." See Commonwealth v. Wynton W., 459 Mass. 745, 749 (2011) ("dangerous weapon" defined as object either "designed and constructed to produce death or great bodily harm" or "used in a dangerous fashion"). See also Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). The judge did not err in denying the defendant's motion for a required finding of not guilty.
The defendant also argues that the Commonwealth did not prove beyond a reasonable doubt that the Melvin Jackson listed on the certified conviction records was the same person as the defendant. This claim is also meritless. The Commonwealth corroborated the conviction records with inmate records that contained a photograph of the defendant. Officer Velasquez testified that the man in the photograph was the defendant; the jury were also able to see the photograph for themselves. This evidence was sufficient to prove that the defendant was the one who committed the crimes.
Conclusion. "An appellate court typically reviews the denial of a motion for a new trial only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009) (quotation omitted). We identify no error in the partial denial of the defendant's motion for a new trial, and discern no abuse of discretion.
Judgments affirmed.
Order on motion for new trial affirmed.
Order denying motion to vacate duplicative convictions affirmed.