Opinion
13-P-2005
12-29-2014
COMMONWEALTH v. JASON MITCHELL.
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
A Boston Municipal Court jury convicted the defendant of possession of a firearm without a license, in violation of G. L. c. 269, § 10(a), and carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10(n). On appeal from the judgments, the defendant argues error in the denial of his motion to suppress a firearm seized during a traffic stop, arguing that the exit order and pat frisk during the stop and subsequent search of the vehicle were unconstitutional. The defendant also argues on appeal that the evidence was insufficient to support the convictions, the trial judge failed to adequately instruct the jury as to reasonable doubt, and the trial judge should not have given the jury an instruction regarding consciousness of guilt. Finally, the defendant contends State law improperly relieved the Commonwealth of proving whether he had a license to possess a firearm. We affirm.
The jury also convicted the defendant of possession of a firearm without an FID card, in violation of G. L. c. 269, § 10(h), but the trial judge vacated that conviction at the request of the Commonwealth as a lesser-included offence of G. L. c. 269, § 10(a).
Background. About 7 P.M. on March 8, 2012, two plain-clothes police officers in an unmarked cruiser patrolled a section of Roxbury that police described as a "high crime area," where a double homicide had occurred four or five months prior and illegal handguns had been recovered within the previous two months. At one point, the officers saw the defendant's vehicle parked on Marcella Street. As the officers turned onto Marcella Street, the defendant sped away and continued driving above the speed limit. When the defendant stopped at a stop sign, the officers activated their cruiser's siren and lights. The defendant continued at a reduced speed for two tenths of a mile before pulling over and stopping on the side of the road.
The two officers approached the vehicle and observed four people inside: the defendant in the driver's seat, another man in the front passenger seat, a third man in the rear passenger seat, and a sixteen year old girl behind the driver. Upon request, the defendant immediately handed his license to one of the officers. He was unable, however, to locate the car's registration. The defendant also appeared to be nervous, saying twice to one of the officers: "We're good, we're good. You can let us go." At the same time, the other officer noticed two empty liquor bottles near the feet of the 16 year old girl and a black military-style knife near the feet of the other rear seat passenger. The passenger near the knife refused to make eye contact with the officers, staring straight ahead. In light of these factors, along with their presence in a high-crime area, the officers ordered the occupants to exit the vehicle, conducted a pat frisk, and searched the vehicle for weapons. The officers found a loaded revolver in the center console.
Following the arrest of the defendant the officers determined he was the owner of the vehicle.
The defendant was arrested and charged with firearms violations. He later filed a motion to suppress evidence obtained from the stop. A judge denied the motion and the matter subsequently went to trial. At the close of the Commonwealth's case, the defendant filed a motion for required findings of not guilty, which the trial judge denied. The defendant testified in his own defense that he was unaware the gun was in the car. The jury subsequently returned guilty verdicts on all three indictments.
Motion to suppress. In reviewing a motion to suppress, "we accept the [motion] judge's subsidiary findings of fact absent clear error," but independently review the judge's legal conclusions. Commonwealth v. Scott, 440 Mass, 642, 646 (2004).
On appeal, the defendant makes two arguments in favor of suppression. He first claims that the officers did not have a reasonable concern for their safety that would justify the exit order. Police are allowed to order occupants out of an automobile during a routine traffic stop if an officer has "a reasonable belief that their safety, or the safety of others, is in danger." Commonwealth v. Torres, 433 Mass. 669, 673 (2001), citing Commonwealth v. Gonsalves, 429 Mass. 658, 662-663. (1999). A hunch alone is not enough, but "it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns." Id. at 664.
The motion judge correctly concluded that the exit order was valid based on the reasonable belief of the officers that their safety was in danger. The judge found a number of factors that supported the officers' reasonable concern for their safety and belief that criminal activity was involved. The defendant's failure to produce a valid registration was one factor. See Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995) ("Inability to produce a license or a registration reasonably gives rise to a suspicion of other offenses, such as automobile theft, and justifies heightened precautions for the officers' own safety"). Additional factors included the defendant's nervousness, the stop occurring in a high-crime area, the empty liquor bottles on the floor, and, most notably, the presence of the black military-style knife next to the feet of the rear seat passenger who refused to make eye contact with the officers. These all gave rise to a reasonable belief that the safety of the officers was in danger.
The defendant next argues that the pat frisk and search of the automobile conducted by the officers were unlawful. The analysis for whether a pat frisk is proper is the same as that used to determine whether the exit order is valid. Commonwealth v. Torres, 433 Mass. 669, 676 (2001). The question is "whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger." Id. at 675-676, quoting from Commonwealth v. Vazquez, 426 Mass. 99, 102-103 (1997). A protective search may extend to the interior of an automobile, Commonwealth v. Almeida, 373 Mass. 266, 272 (1977), including closed compartments, such as a center console or glove box, where a weapon may reasonably be located. See Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129-130 (2010). Here, the same factors justifying the exit order and pat frisk of the occupants of the vehicle also supported the search of the automobile, including the console where the loaded revolver was found. The motion judge properly denied the motion to suppress.
Motion for required findings of not guilty. The defendant argues that the Commonwealth failed to present sufficient evidence to prove that he constructively possessed the handgun found in the center console. In reviewing a sufficiency of evidence claim, we determine whether a rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, could find the crimes proved beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On the facts presented here, a rational trier of fact could easily have concluded that the defendant constructively possessed the firearm found in the center console of the car that he both owned and operated on March 8, 2012.
Jury instructions regarding reasonable doubt. The defendant argues that the trial judge erred by deviating from the model reasonable doubt instruction and by not sufficiently explaining the concepts of both reasonable doubt and the presumption of innocence. This purported error, he claims, resulted in a substantial risk of a miscarriage of justice. The defendant also contends that trial counsel's failure to object to the instruction amounted to ineffective assistance of counsel.
While the Supreme Judicial Court has recommended that trial judges use the reasonable doubt language from Commonwealth v. Webster, 5 Cush. 295 (1850), "there is no requirement that judges use particular words in their jury instructions." Commonwealth v. Lebron, 66 Mass. App. Ct. 907, 908 (2006). An instruction is acceptable so long as it reasonably conveys the concept of reasonable doubt. See Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995). We have reviewed the trial judge's instruction and conclude that it met that standard. Consequently, we discern no error. As a result, the defendant's assertions regarding a substantial risk of a miscarriage of justice and ineffective assistance of counsel do not require further analysis.
Jury instruction on consciousness of guilt. The defendant argues that the judge erroneously gave an instruction regarding consciousness of guilt based on the defendant driving two-tenths of a mile before pulling over and then imploring the officers to "let us go." It is within a trial judge's discretion to give a consciousness of guilt instruction if an "inference of guilt . . . may be drawn from evidence of flight, . . . or similar acts." Commonwealth v. Siny Van Tran, 460 Mass. 535, 552-553 (2011), quoting from Commonwealth v. Tu Trinh, 458 Mass. 776, 780 (2011).
The defendant's failure to immediately stop and his apparent nervousness during the encounter with police could reasonably demonstrate consciousness of guilt. Moreover, the judge's instruction makes clear both that the defendant's conduct suggesting consciousness of guilt does not necessarily demonstrate actual guilt, and that consciousness of guilt alone is not enough to convict an accused. The trial judge's instruction was proper.
Sufficiency of the evidence. The defendant's final argument is that there was insufficient evidence to support his conviction for illegal possession of a firearm. He bases this claim on the assertion that Massachusetts law improperly relieves the Commonwealth of the burden to prove whether a defendant has a license to possess a firearm. It is true that under G. L. c. 278, § 7, the burden to produce a license is on the defendant. It is also true that the Supreme Judicial Court repeatedly has affirmed the propriety of this provision, noting that "the absence of a license is not 'an element of the crime,' as that phrase is commonly used." Commonwealth v. Powell, 459 Mass. 572, 582 (2011). The defendant's argument thus must fail, as we do not have the authority to "alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486 (2003).
Judgments affirmed.
By the Court (Rapoza, C.J., Vuono & Meade, JJ.),
Panelists are listed in order of seniority.
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Clerk Entered: December 29, 2014.