Opinion
No. 10–P–1656.
2013-03-26
COMMONWEALTH v. Martin McLAUGHLIN (and four companion cases ).
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We consider the appeals of Martin McLaughlin, Charles Demos, and Joseph Field, from their convictions of armed robbery and, in the case of McLaughlin, the additional crimes of illegal possession of a firearm and illegal possession of ammunition. The convictions arose out of an early morning incident on Salem Street in Malden, on April 19, 2008, during which a group of young men assaulted the victim, Emmanuel Luma, with a handgun and a knife, and took items from his pockets.
The defendants were sentenced in July, 2009, and filed timely notices of appeal. Originally docketed together in this court on September 23, 2010, the cases were stayed to permit McLaughlin to file a motion for new trial, and stayed again, at the Commonwealth's request, because of a missing transcript.
1. Demos's appeal. a. Denial of motion to dismiss indictment. Demos filed a motion to dismiss claiming (1) there was insufficient evidence to establish identity and probable cause to arrest, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), and (2) the integrity of the grand jury was impaired by the failure of the prosecutor to disclose a statement made by Luma that, at a showup conducted in the aftermath of the incident, he had identified the suspects “due to their clothing and physical description (size, weight)”. See Commonwealth v. O'Dell, 392 Mass. 445, 449–451 (1984). Neither claim has merit.
Taken in the light most favorable to the Commonwealth, see Commonwealth v. Caracciola, 409 Mass. 648, 649 n. 1 (1991), the evidence before the grand jury established that Demos was seen by the police shortly after the robbery in the company of McLaughlin and Field, both of whom possessed items connecting them to the crime. The men were walking together at about 3:00 A.M., on an otherwise deserted street, which was in close proximity to where the robbery took place. Demos's physical stature matched Luma's initial description of one of his assailants, and, when the three men were displayed to Luma at a showup, he positively identified them as among the group that had assaulted him. On the basis of this evidence, probable cause and identity were established.
As for Luma's statement regarding his identification of the suspects, it was more inculpatory than what was presented to the grand jury. Accordingly, “if laid before the grand jury, [it] would almost certainly have left unaltered the disposition to indict .” Commonwealth v. Biasiucci, 60 Mass.App.Ct. 734, 738 (2004).
b. Denial of motion to suppress. Demos moved to suppress the results of the showup identification, claiming that he had been unlawfully stopped and detained and that the showup was unnecessarily suggestive. Applying familiar standards,
we discern no error in the motion judge's denial of the motion.
We accept the motion judge's findings absent clear error, and independently review his legal conclusions. Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).
The relevant facts may be summarized as follows.
Shortly after the robbery, at around 3:00 A. M., Luma told Sergeant John Crannell that a group of four to five men had confronted him, that one of the men held a large black gun and another a knife, and that some in the group had worn hooded sweatshirts (one of which was gray), and bandanas (one of which was white). Crannell broadcast Luma's description of the robbers to other Malden officers. Officer Lawrence McGahey heard the broadcast and, after speaking with Crannell, drove along Salem Street, which was believed to be the possible path of flight. As he drove, McGahey observed little vehicular and no pedestrian traffic until he came to the intersection with Laurel Street, where he saw three young males on foot. The three were wearing hooded sweatshirts, one of which was gray.
We take the facts from those found by the judge, supplemented with uncontroverted details adduced from the motion hearing witnesses, whom we infer the judge credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
McGahey pulled his marked cruiser up to the group and asked them to stop. They turned and looked at him, at which point, one of the men, who was wearing a hooded sweatshirt and a white bandana (and who later was identified as McLaughlin), said something to the other two and began to walk away. McGahey told him to stop, but he continued walking away and, when McGahey started to follow him, began to run. The other two men (later identified as Field and Demos) then began to walk away in the opposite direction. As he chased McLaughlin, McGahey used his radio to alert fellow officers about the other two men. After a struggle in which McGahey pulled a handgun from McLaughlin's waistband, McGahey was able to subdue him. Other officers found Field and Demos and brought them to where McGahey was detaining McLaughlin, ten to fifteen yards from where McGahey first had seen the men.
The officers radioed Crannell, who had remained with Luma, to inform him that they had detained three suspects. Crannell asked Luma if he might be able to identify the persons who had robbed him, and Luma said that he might. Crannell then went over the department's identification procedures check-list with Luma. The check-list included advisements that the perpetrators might not be among those presented, and that he should not feel compelled to identify someone shown to him.
Luma was brought to the area where the three suspects were standing. A number of police officers were close by; however, none of the men was presented in any physical restraint.
Luma viewed the suspects from the rear seat of the cruiser. The suspects were displayed in the same area, about two car lengths or twenty-five to thirty feet apart from each other. The distance between the officers and the suspects was approximately two feet, and the lighting was good. Luma identified the three suspects as being among the group that had robbed him.
Prior to Luma's arrival, McLaughlin was released from handcuffs that had been placed on him when his gun was recovered by McGahey.
On the identification check-list (which was introduced in evidence at the suppression hearing) Crannell wrote that Luma “felt the group that had robbed him were the same as the three individuals stopped by [the officers] due to their clothing and physical description (size, weight).”
The motion judge properly ruled that the police had reasonable suspicion to believe that the three men, including Demos, had been involved in the robbery. They were spotted by McGahey shortly after the robbery took place (at about 3:00 A.M.), they fit the general description given by Luma of his assailants, and they were walking together on an empty street a short distance from the crime scene.
Contrary to Demos's argument, McGahey's testimony at the suppression hearing supported the judge's finding that Demos and the others were dressed as Luma had described. In any event, whether or not Demos, himself, was wearing a gray hooded sweatshirt, the other factors, taken together sufficed to create reasonable suspicion that he was among those who robbed Luma.
After the three were apprehended, it was not unreasonable for the police to detain and transport all of them, including Demos, to the site of the showup, as a reasonable extension of the investigatory stop. See Commonwealth v. Dargon, 457 Mass. 387, 404 (2010); Commmonwealth v. Hill, 64 Mass.App.Ct. 131, 134 (2005). Where the crime had occurred minutes earlier, and the procedure allowed the victim to see the suspects immediately after the robbery, there was good reason to conduct the showup. See, e.g., Commonwealth v. Santos, 402 Mass. 775, 783–784 (1988).
There was nothing inherently improper about the defendants being displayed together. See Commonwealth v. Lifsey, 2 Mass.App.Ct. 835, 835 (1974); Commonwealth v. Rogers, 38 Mass.App.Ct. 395, 402–404 (1995). None of the men was in restraints, and Luma viewed them in good lighting. Luma received cautionary advisements from Officer Crannell, in accordance with department procedures. In these circumstances, the motion judge was warranted in concluding that Demos had failed to show by a preponderance of the evidence that the defendant was subjected to a showup that was so unnecessarily suggestive as to be conducive to a mistaken identification.
c. Admission of hearsay. Demos argues that Crannell should not have been permitted to testify about certain statements made by Luma, because they were inadmissible hearsay.
To the extent that Demos challenges statements of identification made by Luma at the showup, the statements were admissible for both corroborative and probative purposes. Commonwealth v. Martinez, 431 Mass. 168, 176 & n. 7 (2000). To the extent that Demos challenges the descriptions of the suspects given by Luma to Crannell,
Because Luma testified at trial and was available to be cross-examined, the defendants' confrontation rights were not implicated. Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004).
the judge properly admitted this evidence, with appropriate limiting instruction,
We assume, arguendo, that objection to this evidence, made by an unidentified speaker, was made on behalf of Demos.
as relevant to show the state of police knowledge that drew their attention to the defendants. See Commonwealth v. Rosario, 430 Mass. 505, 508–509 (1999); Commonwealth v. Gaynor, 443 Mass. 245, 270 (2005).
The judge instructed the jury that the statements were not to be considered “for their truth but for the fact that the description was given at the time.”
To the extent that Demos refers to other allegedly inadmissible statements, they were not the subject of objection by anyone and did not give rise to a substantial risk of a miscarriage of justice.
d. Sufficiency of the evidence. Taken in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), there was sufficient evidence for the jury to find that Demos was one of the perpetrators. Luma testified that of the individuals who were involved in the robbery, one was “a little heavier,” a description that fit Demos. Shortly after the robbery, McGahey saw McLaughlin, Field, and Demos walking together in the same deserted area. When McGahey approached them, McLaughlin said something, and then Demos (along with Field) walked away. McGahey, who was present at the showup, testified that the two men he initially saw with McLaughlin were brought back by other officers for the showup. At that showup, Luma identified the three suspects as among those who had robbed him.
At a minimum, the evidence sufficed to establish Demos's culpability as a joint venturer. It was established that four to five men surrounded Luma, McLaughlin pointed a gun at him, another man clicked open a knife, and two men rummaged through his pockets and took items later recovered from McLaughlin and Field. From these facts, it fairly could be inferred that regardless of which individual took particular actions, all those who surrounded Luma knowingly participated in the armed robbery, with the intent required to commit the crime. See Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009); Commonwealth v. Jansen, 459 Mass. 21, 28 n. 20 (2011).
2. Field's appeal. a. Admission of hearsay. As Field's argument mirrors that of Demos, it fails for the reasons stated above.
b. Sufficiency of the evidence. In addition to the evidence discussed above with respect to the sufficiency argument raised by Demos, there was evidence that, at booking, Field was wearing a “gray hoodie,” thus matching a detail of Luma's description of those who robbed him. There also was evidence that Field was found with a purple lighter that matched the description of a lighter taken from Luma during the robbery, and identified by Luma at trial. The jury reasonably could find from the circumstances that, like Demos, Field was a knowing participant in the robbery, knew that a weapon was being used, and shared the requisite intent to commit the crime.
c. Prosecutor's opening statement and closing argument. Field claims that a number of remarks made by the prosecutor in opening and closing arguments were improper, but Field did not object to any of them at trial. There is no indication that the prosecutor acted in bad faith in referring, during his opening statement, to evidence that later was excluded. See Commonwealth v. O'Connell, 438 Mass. 658, 668 (2003). Other challenged comments either were not improper, or were ameliorated by specific corrective instruction or by the judge's general instructions that the remarks of counsel were not evidence. We discern no substantial risk of a miscarriage of justice.
d. Denial of motion for a continuance of the trial. Substantially for the reasons stated in the Commonwealth's brief, at 39–40, it has not been demonstrated by Field that the trial judge's denial of his motion to continue the trial was an abuse of discretion.
e. Ineffective assistance of counsel. Without having first raised the issue by means of a motion for a new trial, Field claims that his counsel was ineffective for failing to file a motion to suppress his identification. Ordinarily we will not review claims of ineffective assistance of counsel on direct appeal, and this case provides no grounds for exception. See Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). In any event, Field has not shown that if a motion to suppress had been filed on his behalf, it would have been any more successful than the motion to suppress filed by Demos.
3. McLaughlin's appeal. a. Admission of ballistics certificate. McLaughlin argues that he is entitled to a new trial on the charge of unlawful possession of a firearm because evidence of the gun's operability was established by a ballistics certificate admitted in evidence without affording him the opportunity to cross-examine the ballistician who test-fired the weapon.
We are satisfied, however, that the admission of the certificate was harmless beyond a reasonable doubt. See Commonwealth v. Depina, 456 Mass. 238, 248–250 (2010).
McLaughlin makes no argument about barrel length.
Briefly summarized, the Commonwealth's evidence on the firearms charge was as follows. After being requested to stop by McGahey, McLaughlin ran away, reaching for his waistband. McGahey tackled him and saw the wooden handle of a black revolver, which McGahey tossed aside during the struggle. The revolver was loaded with three rounds of ammunition. After being informed of his Miranda rights, McLaughlin told McGahey that he was carrying the gun for protection and begged McGahey to wipe the fingerprints from the gun because a weapons charge would prevent McLaughlin from joining the Navy. The handgun and two of the rounds of ammunition found in the gun were introduced in evidence.
McLaughlin did not dispute this evidence or contest the firearms charges in any way. Indeed, his defense to the armed robbery charge was to concede his illegal possession of the firearm and to use that fact to explain his flight from police.
Consistent with this strategy, counsel for McLaughlin agreed to a series of stipulations that were read to the jury at the close of the Commonwealth's case. Of particular significance, there was a stipulation not only to the admission of certificates of analysis for the firearm and ammunition, but also to the fact “that the third round of ammunition that was found in the firearm was used to test fire the weapon.”
In his opening statement, McLaughlin's attorney stated: “[H]e knew he was in trouble because he knew he had a firearm he didn't have a permit to carry. That's why he ran. That's why he attempted, you'll hear, while he was running to toss the gun away.” In closing, McLaughlin's counsel argued: “Mr. McLaughlin knew he was carrying an unlicensed firearm. He fled at the prospect of that encounter with the police while illegally carrying that firearm.... As I stated in opening, he's guilty of the offense of carrying a firearm, he knew he was, and to the extent that he fled, he was fleeing because of that offense.”
The other stipulations were that an envelope, introduced as exhibit 10, contained two rounds of live ammunition removed from the firearm taken from McLaughlin, and that he did not have a license to carry a firearm in Massachusetts at the time of the alleged event.
This case was tried after the decision in Commonwealth v. Verde, 444 Mass. 279, 284 (2005), and prior to the decision in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 310–311 (2009). Accordingly, the stipulation to the admission of the certificate without the appearance of the affiant may simply have reflected counsel's reliance upon the state of the law at the time. However, the stipulation that the third bullet “was used to test fire the weapon” was a binding stipulation of fact, i.e., that the gun was test fired, and, therefore, operable. For that reason, if no other, the admission of the certificate was harmless beyond a reasonable doubt. See Commonwealth v. Muniz, 456 Mass. 166, 172–173 & n. 7 (2010).
b. Lesser included offense. Claiming that his trial counsel was ineffective for not seeking an instruction on the lesser included offense of simple assault, McLaughlin argues that the trial judge should have allowed his motion for a new trial. We review the judge's ruling for abuse of discretion, and, because she also served as the trial judge, give special deference to both her findings and her ultimate decision. See Commonwealth v. Lane, 462 Mass. 591, 597 (2012).
As the judge found, contrary to the affidavit of trial counsel that he “never considered” an instruction on simple assault, the trial record reveals that he made a tactical decision.
Furthermore, it was not manifestly unreasonable for trial counsel to forego an instruction on simple assault given the state of the evidence presented, and the potential for such an instruction to undermine the defense argument that Luma and a companion had precipitated any interaction with McLaughlin, and that Luma's account was wholly untrue. See generally, Commonwealth v. Glover, 459 Mass. 836, 843–844 (2011).
The judge asked McLaughlin's counsel if he wanted any instructions on lesser included offenses, to which he replied, “No, Your Honor.”
c. Constitutionality of firearms licensing statute. McLaughlin's claim that G.L. c. 140, § 131, is unconstitutional on its face was not raised below. In any event, the claim is devoid of merit. The decisions of the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 130 S.Ct. 3020 (2010), have not invalidated the Massachusetts firearms licensing laws. Commonwealth v. Loadholt, 460 Mass. 723, 725–726 (2011); Commonwealth v. McGowan, 464 Mass. 232, 240–241 (2013).
4. Conclusion. As to all three defendants, the judgments are affirmed. In addition, as to defendant McLaughlin, the order denying his motion for a new trial is affirmed.
So ordered.