Opinion
No. 15–P–819.
01-04-2017
COMMONWEALTH v. Neanh KRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of unlawful possession of a sawed-off shotgun. He then pleaded guilty to unlawful possession of a prohibited weapon with one prior violent crime. The charges related to a shotgun found in a car that the defendant had been driving. Vinson Johnson, the passenger in the car, was also charged with possession of the weapon, and the two were tried jointly. On appeal, the defendant makes three claims of error: (1) there was insufficient evidence for a jury to convict him of possessing the shotgun, (2) the judge abused his discretion in denying his motion to sever his trial from that of Johnson, and (3) the judge erred in denying his motion for new trial (and a subsequent motion for reconsideration) that had alleged that his trial attorney's failure to move to suppress the shotgun amounted to ineffective assistance of counsel. We affirm the judgments and the orders denying the defendant's motions for a new trial and for reconsideration.
The defendant was also charged, and convicted, of driving a motor vehicle under the influence of alcohol. He raises no claims of error with regard to that conviction. The jury acquitted the defendant of unlawful possession of ammunition.
Background. While on patrol in 2013, Northampton police Officer Paul Marguet observed a car coming toward him in his lane of travel. He had to swerve to avoid the oncoming car. Marguet turned his car around in pursuit. When he caught up to the defendant's car, Marguet activated his blue lights, and the car pulled into a parking lot for the Hampshire Heights Apartments. Based on his observation of and discussions with the defendant and the defendant's performance on field sobriety tests, Marguet arrested the defendant for driving under the influence of alcohol. After another police officer, Carlos Lebron, arrived at the scene, Marguet took the defendant back to the station for booking. There, the defendant agreed to a breathalyzer test that indicated a blood alcohol content of .14.
Before Officer Marguet left the scene of the stop, he told Officer Lebron that the car would have to be towed. After briefly interacting with Johnson, Lebron allowed Johnson to retrieve a bag from the car and leave by foot. Then, while still standing outside of the car, Lebron looked inside of it using his flashlight. He observed a sawed-off shotgun lying between the front passenger seat and the door, with its barrel protruding forward of the seat. Lebron yelled for Johnson to return. Johnson cooperated and was arrested. A subsequent search revealed shotgun shells under the passenger seat.
Back at the station, police questioned the defendant about the shotgun. He initially denied any knowledge of it and stated that the shotgun did not belong to him or to his father (the owner of the car). He later admitted to being aware of the shotgun's presence in the car, offering the cryptic explanation that while he was "driving ... something happened. A gun came in the car. And that was it." When questioned separately about the shotgun, Johnson denied any knowledge of it.
Both the defendant and Johnson moved to sever their trials. After the trial judge denied those motions, they were tried jointly. The Commonwealth's theory at trial was that the two men jointly possessed the shotgun. Its case against the defendant focused on his admission that he knew of the presence of the shotgun in the car that he controlled, and on his evasive answers to the police. Its case against Johnson focused on the shotgun's immediate presence next to him, and on the argument that Johnson must have been aware of the gun given its specific location in the car. Neither man testified. The focus of their respective defenses is reserved for later discussion. After hearing the evidence, the jury convicted the defendant and acquitted Johnson.
Although it is undisputed that the defendant's father owned the car, both the defendant and his father used it, and the defendant characterized the car as "his but it was also his father's."
The defendant moved for a new trial based on his trial counsel's failure to request suppression of the shotgun. The trial judge denied that motion without a hearing "[f]or the reasons set forth in the Commonwealth's opposition," and he summarily denied a motion for reconsideration. The appeals from those postconviction orders were consolidated with the defendant's direct appeal.
Discussion. 1. Sufficiency. The defendant's claim that the evidence was insufficient as a matter of law requires little discussion. To demonstrate constructive possession of the shotgun, the Commonwealth had to prove "that the defendant had ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Than, 442 Mass. 748, 751 (2004), quoting from Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). The position of the shotgun in the defendant's car, his admitted knowledge of its presence, and his evasive response to police supplied ample evidence of these factors. See Commonwealth v. Cotto, 69 Mass.App.Ct. 589, 592 (2007) ("Presence alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], but presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency" [quotations omitted] ). With respect to Johnson's being closer to the shotgun, the jury were free to accept his argument that he in fact had no knowledge of the shotgun's presence. In any event, even if the jury had concluded that Johnson possessed the gun, they could have concluded that the gun was jointly possessed.
2. Severance. It is undisputed that the charges against the two defendants here arose out of the same criminal conduct. Under such circumstances, "[i]t is presumed that individuals will be tried together." Commonwealth v. Hernandez, 473 Mass. 379, 391 (2015). Nevertheless, "[a] judge may sever trials if it appears that joinder ‘is not in the best interests of justice,’ Mass.R.Crim.P. 9(d), [378 Mass. 859 (1979) ], and should sever trials if: (1) the defenses are mutually antagonistic where the sole defense of each [is] the guilt of the other, or (2) the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial." Ibid. (quotations and citation omitted). Whether to sever lies within the judge's discretion. See id. at 393. "Abuse of discretion occurs when the prejudice to the party asking for severance is so overwhelming that it prevents a fair trial." Commonwealth v. Kindell, 44 Mass.App.Ct. 200, 205 (1998), citing Commonwealth v. Weaver, 400 Mass. 612, 617 (1987). "[I]t is not enough that the defendants are hostile to one another or that one defendant would have a better chance of acquittal if tried alone." Commonwealth v. Akara, 465 Mass. 245, 256 (2013) (quotation omitted).
Measured against these standards, the defendant is unable to demonstrate that the judge abused his discretion in declining to sever the trials. Although there was certainly some tension between the codefendants' respective defenses, it cannot reasonably be said that the defenses were "irreconcilable." Contrast Commonwealth v. Moran, 387 Mass. 644, 659 (1982). While the defendant's main trial strategy was to argue that the evidence showed that the shotgun was in Johnson's possession, and not his, Johnson did not overtly blame the defendant and instead emphasized the lack of evidence demonstrating that he was aware of the gun (notwithstanding its placement). In fact, Johnson made a point of urging the jury to avoid the inclination to "take the position that ... it had to belong to one of these guys." In the face of the defendant's suggestions that the jury should choose between the defendants, the jury were well aware that they also had the options of finding that the defendants jointly possessed the shotgun (as the Commonwealth urged) or finding that the Commonwealth had not met its burden of proving possession by either defendant.
In Moran, supra, the Commonwealth had offered compelling evidence that at least one of the two codefendants, but not necessarily both codefendants, had robbed and killed the victim. Under those circumstances, each defendant effectively had no plausible defense but to blame the other. Ibid.
Specifically, Johnson's attorney said: "[Y]ou don't have any evidence from any source that tells you how long Mr. Johnson was in that car, who may have gotten in and out of that car prior to its stop.... In fact, let me point out that not a single witness could testify from their personal knowledge how long that shotgun and ammunition were in the car, who put it there, and when it got there." At one point in his closing, Johnson's attorney even suggested that some unknown third party might be responsible for the gun's presence in the vehicle.
In his instructions to the jury, the judge emphasized that "[t]he Commonwealth has the burden of proving beyond a reasonable doubt the guilt of each defendant separately and individually ... [and] it is your duty to examine [the evidence] carefully as to the charge or charges against each defendant separately as if he were on trial alone."
Nor can the defendant demonstrate any problem related to the particular nature of the evidence offered at the joint trial. For example, there was no evidence that Johnson made pretrial statements implicating the defendant (which might have raised confrontation clause issues). See generally Commonwealth v. Rivera, 464 Mass. 56, 69 (2013). The defendant does highlight that after the prosecutor elicited testimony on direct examination regarding the defendant's evolving statements to the police about the shotgun, Johnson's counsel was able to reinforce the point in his cross-examination. However, any unfairness in this is not so great as to render the denial of the defendant's motion to sever an abuse of discretion.
The defendant's reliance on United States v. Crawford, 581 F.2d 489 (5th Cir.1978), is misplaced. Although the alleged crime in Crawford was similar to that at issue here, the trial was not. In Crawford, as in Moran, "[t]he sole defense of each [defendant] was the guilt of the other." Id. at 492. In addition, each defendant had to confront both the government's witnesses against him and those put forward by his codefendant, and each defendant was "the government's best witness against the other ." Ibid. Here, neither defendant called witnesses and neither testified against the other.
3. Ineffective assistance. The failure to pursue a motion to suppress can support an ineffective assistance claim only if such a motion likely would have been allowed. Commonwealth v. Comita, 441 Mass. 86, 91 (2004). We agree with the Commonwealth that the defendant is unable to make such a showing.
The defendant's argument that the discovery of the shotgun was the fruit of an illegal search or seizure is a narrow one. Specifically, he argues that at the point he was arrested for operating under the influence of alcohol (OUI), his car was legally parked at the Hampshire Heights Apartments. On this basis, he argues that the police had no valid justification for impounding the car, and that doing so was in fact prohibited by the police department's written inventory search policy.
The defendant makes no claim that the police decided to impound the defendant's car as a pretext for conducting an investigatory search. To the contrary, as the defendant acknowledges, Officer Marguet testified to his understanding that impoundment was required by the police department's written policies. Thus, the defendant argues that Officer Marguet erroneously applied department policy.
This is confirmed by Officer Marguet's grand jury testimony, an excerpt of which the defendant submitted with his motion for a new trial.
In pertinent part, the inventory search policy states as follows:
"It shall be the policy of the Northampton Police Department to conduct and record an inventory of the contents of all motor vehicles towed, removed or stored at the request of the Northampton Police Department as the result of police actions with the exception of the following circumstances in which no inventory will be taken: 1. When the vehicle is legally parked and locked."
The defendant reads this policy as prohibiting the impoundment of vehicles that are legally parked and locked. A close reading of the just-quoted language belies that interpretation. This language speaks to when the police are required to conduct an inventory search, and it recognizes that police do not need to take an inventory of cars that are left legally parked and locked. The policy does not speak to when the police are required to impound, or prohibited from impounding, vehicles that they stop. That subject is specifically addressed by a separate written policy that governs police conduct when the driver of a vehicle has been arrested for OUI. Under that policy:
"Officers shall impound any vehicle being driven by a motorist prior to his arrest for operating under the influence of liquor and/or drugs. Impoundment is automatic and shall not depend on the type of vehicle, who its current owner is, or whether any passengers are in position to drive the vehicle from the scene of arrest."
Officer Marguet's understanding that this policy both allowed and required impoundment of the defendant's car is well grounded in the just-quoted language.
The defendant is not aided by arguing that the automatic OUI impoundment policy may make little sense in the unusual circumstance where the stop took place as the driver was pulling into his own property. Regardless of how the police might treat such a case (something we do not know), those are not the facts here.
Moreover, the Commonwealth has supplied sound policy justifications for the strict impoundment policy with respect to OUI stops, including the need to relieve private property owners of the obligation to tow cars left behind and the risk of department liability for damages to the owner of the vehicle or to harmed parties for relying on the decision of an intoxicated operator as to what to do with the vehicle. Even if the police credited the defendant's claim that he coincidentally was visiting someone at the very location where he was pulled over, and even if the car could be considered to have been legally parked there with the lot owner's tacit approval, the police were under no obligation to create an exception to the policy that would allow the defendant to leave his car there. See Commonwealth v. Dunn, 34 Mass.App.Ct. 702, 706 (1993) (holding it reasonable to impound vehicle where police were "responsible for pursuing the vehicle to a stop on private property and, by the arrest, leaving it driverless" to spare property owner burden of removal). This is particularly true where there is no evidence that the defendant requested this. See Commonwealth v. Bienvenu, 63 Mass.App.Ct. 632, 635 n. 4 (2005) ("[I]t is not incumbent upon the police officers to offer reasonable alternatives [to impoundment]").
The defendant's argument that a motion to suppress likely would have been allowed also faces independent additional obstacles. Although it is clear that the police had made a decision to impound the defendant's car prior to discovering the shotgun, that does not mean that they already had impounded it at that point in time. Citing to Commonwealth v. Brinson, 440 Mass. 609, 612 (2003), the defendant argues that impoundment "occurs at the moment that the police take control of the vehicle and deprive the owner of possession." By that measure, the police had not yet impounded the car when Officer Lebron observed the shotgun from the outside of the vehicle, as they had not yet entered the vehicle or taken any action to seize control of it. The plain view doctrine permits an inherently incriminating object discovered without a warrant to be admitted when it is spotted in plain view by an officer who is "lawfully in a position to view the object." Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 306 (2010). Here, where the constitutionality of the vehicle stop and the defendant's arrest are not in question, Officer Lebron lawfully was in a position to observe the shotgun in plain view through the closed window regardless of whether the still-unexecuted decision to impound the car was justified.
We do not rely on the Commonwealth's argument that impoundment does not occur until after the car is towed back to the station.
The fact that Officer Lebron characterized his looking into the car as the first stage of a "visual inventory search" is beside the point.
Finally, even if the police had pursued the option that the defendant now argues was required (leaving the vehicle parked in place), there was nothing prohibiting them from peering into the car before leaving it there. See Commonwealth v. Sergienko, 399 Mass. 291, 294 (1987) ("What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection"). Thus, even if the defendant prevailed on every other argument, he would still have to overcome the facially strong contention that the discovery of the shotgun was inevitable. See Commonwealth v. Hernandez, 473 Mass. at 386.
Indeed, given the danger that someone would break into the car if something valuable were left in plain view (a danger exacerbated when the car has been left unlocked and the occupant's judgment could be impaired by intoxication), it might well have been shoddy police work if the police had not taken such precautions.
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In light of this analysis, the defendant has not raised a substantial issue entitling him to an evidentiary hearing. Commonwealth v. Murphy, 442 Mass. 485, 506 n. 21 (2004). In any event, it is not clear that an evidentiary hearing would have been helpful in this case because, based on the undisputed facts alone, the defendant was unlikely to prevail on a motion to suppress.
Judgments affirmed.
Orders denying motion for new trial and motion for reconsideration affirmed.