Opinion
10-P-2113
11-21-2011
COMMONWEALTH v. KYON JAMES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following jury and bench trials in Superior Court, the defendant was convicted of armed robbery and related offenses. On appeal, he alleges a constitutional infraction related to the fact that he was initially apprehended and briefly held in Boston (Mattapan) by a Milton police officer who was outside of his geographical jurisdiction. We affirm.
. The defendant was convicted of the following charges: (1) armed robbery while armed with a firearm, second offense (G. L. c. 265, § 17); (2) unlawful possession of a firearm (G. L. c. 269, § 10[a]), as an armed career criminal (G. L. c. 269, § 10G[b]); (3) possession of a firearm in the commission of a felony (G. L. c. 265, § 18B); (4) unlawful possession of a loaded firearm (G. L. c. 269, § 10[n]); and (5) unlawful possession of ammunition (G. L. c. 269, § 10[h][1]). There was a jury trial on the underlying charges, and a bench trial on the enhancements.
The jury also convicted the defendant of assault by means of a dangerous weapon (G. L. c. 265, § 15B[b]), but the trial judge vacated that conviction as duplicative of the defendant's conviction for armed robbery. The Commonwealth crossappealed on that issue. We have stayed the Commonwealth's cross appeal pending action by the Supreme Judicial Court in Commonwealth v. Muller, SJC No. 10891, and Commonwealth v. Anderson, SJC No. 10925. Accordingly, we do not address the trial judge's order or the related underlying conviction.
Discussion. The Legislature has authorized police officers to seek aid in the execution of their duties 'in the apprehending or securing of a person for a breach of the peace.' G. L. c. 37, § 13. See generally Commonwealth v. Twombly, 435 Mass. 440 (2001). That provision was invoked here.
The issue arose below in the context of the defendant's motion to suppress. The judge made the following findings on that motion:
The defendant did not raise the extraterritorial issue in his original motion, but the Commonwealth itself flagged the issue in its opposition, and the issue was discussed at the hearing on the motion. The defendant later unsuccessfully sought to amend his motion to suppress to add the issue and to raise it in other motions. We need not reach the question whether the defendant waived the issue by not including it in his original motion to suppress (which the judge put forth as alternative grounds to deny the motion).
'On October 6, 2007, [Boston police] Officer Pulchansingh and a partner were in plain clothes in an unmarked police car in Mattapan. At about 5:40 p.m he saw two men fighting in the doorway of a Sunoco gas station and convenience store on River Street. One of the men was an employee of the station. The other was the defendant. As the officers pulled into the station, the defendant broke free and ran away. The station employee pointed to the defendant and said, 'he just robbed me.'
'The defendant ran across River Street and behind a store. Officers chased the defendant by car and on foot. They sent in radio messages reporting the robbery, describing the defendant and requesting assistance from other officers.
'Officer Pulchansingh caught up with the defendant as he climbed over a fence. The defendant turned around and looked at the officer, and the officer got a good look at his face. The defendant continued to run.
'[Milton police] Lieutenant King was nearby and across a short bridge into Milton. He heard a Boston Police radio message requesting assistance for officers chasing a robbery suspect. When not busy with Milton matters, Lieutenant King often listened to Boston Police radio messages. He helped out whenever he could in incidents near the Milton line. Lieutenant King drove over to River Street on the Boston side of the bridge. He saw two Boston Police officers pointing in an area where the defendant had fled. Lieutenant King heard a series of Boston Police radio messages about the robbery which included a description of the robber as a black male in a black T-shirt and blue jeans.
'Lieutenant King saw the defendant running between two houses in a direction away from the pursuing Boston officers. The defendant is a black man. He was wearing a black T-shirt. Lieutenant King saw the defendant with a gun in his hand. He was either putting it in or taking it out of his pocket. Lieutenant King got close to the defendant and told him to let go of the gun. The defendant appeared to be exhausted. Lieutenant King grabbed the defendant and handcuffed him. Lieutenant King or a Boston officer took the gun from the defendant's pocket.
'Officer Pulchansingh arrived. He identified the defendant as the station robber that he had been chasing. Boston officers searched the defendant. They found some cash and an envelope labeled Sunoco.'
Because the defendant has not demonstrated that any of these findings are clearly erroneous, we accept them as true, but proceed 'to determine 'the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mubdi, 456 Mass. 385, 388 (2010), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
By the time he apprehended the defendant, Lieutenant King not only had heard the radio report of a robbery in progress, but had seen the Boston officers pointing in the direction that the suspect had fled. We agree with the judge that at least by the time the officers directed Lieutenant King's attention to where the suspect was fleeing, they had made 'a request for his assistance.' Because no serious argument can be made that a robbery does not constitute a 'breach of the peace,' the judge properly concluded that this case was covered by G. L. c. 37, § 13.
While it certainly can be said that Lieutenant King showed initiative in making himself available to assist the Boston police, there is nothing about this that is at odds with the statutory scheme. Put differently, so long as the statutory thresholds were satisfied, as we conclude they were, we have little doubt that the Legislature would have supported the kind of initiative that Lieutenant King demonstrated.
The actions taken by Lieutenant King were otherwise reasonable and fully justified by the circumstances presented. While the physical description of the suspect that Lieutenant King had heard was relatively general ('a black male in a black T-shirt and blue jeans'), his spotting a person meeting that description, whom he also observed had a gun, running away from the scene in the immediate aftermath of a robbery, provided more than ample reasonable suspicion to detain the man until the Boston police arrived and identified him as the fleeing suspect.
We need not reach the question whether the actions of Lieutenant King could have been justified as a valid citizen's arrest.
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Conclusion. The judgments on counts 001, 004, 005, 006, and 007 of the indictment are affirmed.
So ordered.
By the Court (Mills, Milkey & Carhart, JJ.),