Opinion
16-P-1144
05-25-2017
COMMONWEALTH v. Jeffrey NOEL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jeffrey Noel, appeals from the judgments after his convictions of refusing to provide a driver's license upon demand in violation of G. L. c. 90, § 25, and operating a motor vehicle with a suspended license (subsequent offense). On appeal, the defendant claims that the trial judge abused his discretion by (1) denying his motion to suppress, and (2) improperly limiting his cross-examination of the Commonwealth's witness. The defendant also makes several arguments utilizing the procedure outlined in Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). We affirm.
Background. The following facts were testified to at trial, and are substantially the same as the testimony given during the motion to suppress hearing. On May 18, 2014, Salem police Officer Eric Gagnon responded to a call at the Target store in Salem. An employee of the store had telephoned police to report a vehicle that had been parked in the parking lot for several hours, with the driver remaining seated inside. This had apparently happened several days in a row, and the employee was concerned for "the safety of the employees and the customers inside Target." When he located the vehicle, Officer Gagnon parked his patrol car nearby, got out, and tapped on the driver's window, which was tinted and limited his visibility into the vehicle. The defendant, seated in the driver's seat with the engine running, rolled down the window. Before the officer could say anything to him, the defendant began "to yell at [him], telling [him] that he knew his rights, [Officer Gagnon] had no right to be there."
As Officer Gagnon attempted to ask the defendant for his name and to produce his license, the defendant "refused," and "started to reach into the backseat, behind the passenger seat." The officer warned the defendant to keep his hands in view and not to reach into the backseat. Despite this warning, the defendant continued his attempt to reach into the backseat, at which point Officer Gagnon asked the defendant to step out of the vehicle. The defendant refused. Concerned for his safety, the office removed the defendant from the vehicle and placed him in handcuffs.
As Officer Gagnon repeated his attempts to identify the defendant, the defendant continued yelling and refusing to provide his information. At this point, the defendant's public behavior was drawing attention from other people in the parking lot. Officer Gagnon then informed the defendant he was under arrest. At the police station, the defendant again refused to give the officer any identifying information. Officer Gagnon eventually learned the defendant's identity by contacting the Lynn police department and getting a photograph from the Registry of Motor Vehicles (RMV). That information also showed that the defendant's driver's license was suspended.
Discussion. 1. Motion to suppress. Prior to trial, the defendant moved to suppress all evidence obtained after his initial interaction with Officer Gagnon. The judge ruled that
In his motion and at the hearing, it was unclear exactly what evidence the defendant sought to suppress, aside from "statements made or not made by [the defendant]" and "observations ... after he's pulled out of the car." However, the Commonwealth was not seeking to admit any statements by the defendant, and the only evidence admitted were documents reflecting information obtained from the RMV following the defendant's arrest. As the judge appeared to be specifically addressing the RMV information in his denial of the motion, we shall do the same in our review.
"[t]he officer was justified [in] making inquiry of the defendant after the call from Target staff[,] ... in asking the defendant to step from the vehicle due to his furtive movements, refusal to identify himself and his tumultuous behavior[, and] ... properly arrested [the defendant] for [d]isorderly [c]onduct and as such, ... the information received was properly gained."
"In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016) (quotation omitted).
The defendant contends that the judge erred in denying his motion, arguing that he was effectively seized once Officer Gagnon approached and knocked on his window. This "argument fails because it is premised on a fundamental misunderstanding of the character of the encounter between the arresting officer and [the defendant]." Commonwealth v. Doulette, 414 Mass. 653, 655 (1993). In this case, the judge below correctly described the interaction between the defendant and Officer Gagnon as one consisting of three phases.
In the first phase, Officer Gagnon properly approached the defendant's vehicle in response to the telephone call from the Target employee. The defendant's vehicle was parked; Officer Gagnon made no effort to prevent it from leaving. See ibid. Such an interaction with the defendant, absent some additional show of authority, did not amount to a seizure. See Commonwealth v. Leonard, 422 Mass. 504, 508 (1996) (no seizure where officers asked defendant questions without blocking his way and made "no show of force"). Officer Gagnon did not impinge on the defendant's rights by simply alighting from the police cruiser, approaching the defendant, and attempting to speak with him. See Commonwealth v. Thinh Van Cao, 419 Mass. 383, 387-388, cert. denied, 515 U.S. 1146 (1995). Here, the record supports the judge's findings that the officer was merely "making inquiry" of the defendant, in response to concerns from the Target employee, at the point he approached the defendant.
Nor, in the circumstances of this case, was the defendant's removal from the vehicle and handcuffing by Officer Gagnon a seizure. In this second phase, Officer Gagnon had a reasonable basis to fear for his safety based on the defendant's behavior, including greeting the officer's knock on his window with yelling and repeatedly reaching toward the vehicle's backseat, despite orders to the contrary. In addition, the defendant initially refused the officer's order to exit the vehicle, while continuing his unruly behavior. In these circumstances, Officer Gagnon was fully justified in removing the defendant from the car for safety concerns. See Commonwealth v. Gonsalves, 429 Mass. 658, 665 (1999). Furthermore, handcuffing the defendant after his removal from the car did not mean he was seized in the constitutional sense. See Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992) ("[T]he use of cuffs, if necessary to accomplish a permissible inquiry, does not convert a Terry stop to an arrest").
"[T]he officer need not point to specific facts that the occupants are 'armed and dangerous.' Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Gonsalves, supra, quoting from State v. Smith, 134 N.J. 599, 618 (1994).
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In the third and final phase of the encounter, the defendant continued his loud, disruptive behavior, causing a public disturbance that drew onlookers in the parking lot. At this point, the officer had probable cause to arrest the defendant for disorderly conduct. See Commonwealth v. Chou, 433 Mass. 229, 232 (2001) (disorderly person is one who "with purpose to cause public inconvenience, annoyance or alarm ... engage[s] in fighting or threatening, or in violent or tumultuous behavior" [quotation omitted] ). As a result, the subsequent investigation of the defendant's identity and license status was reasonable and proper, in light of the defendant's continued refusal to identify himself. See Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006) (permissible for police to ascertain defendant's license status from RMV if defendant gives evasive answer). Therefore, the motion to suppress was properly denied.
2. Cross-examination. At trial, the defendant represented himself, with counsel on stand-by to assist. The judge, after a series of argumentative and irrelevant questions from the defendant, ruled that his cross-examination of Officer Gagnon was concluded. We review this ruling for an abuse of discretion. Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003). We will not overrule a trial judge's determination as to the proper scope of cross-examination unless the defendant "demonstrates that the judge abused his discretion and that the defendant was prejudiced thereby." Commonwealth v. Miles, 420 Mass. 67, 72 (1995).
The defendant's right to confrontation includes reasonable cross-examination of the adverse witnesses, not the right to cross-examine a witness endlessly with the hope that something useful will be unearthed. See Commonwealth v. Barnes, 399 Mass. 385, 393 (1987). Generally, a trial judge "has broad discretion to limit cross-examination of a witness." Commonwealth v. Mercado, 456 Mass. 198, 203 (2010) (quotation omitted). "[W]e weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination." Miles, supra. Here, the defendant effectively cross-examined Officer Gagnon about the circumstances leading up to and surrounding the defendant's arrest. Throughout cross-examination, the judge demonstrated considerable patience with the defendant's line of questioning, which included numerous improper questions to which objections were sustained. It was only when the defendant repeatedly ignored the judge's instructions to refrain from asking questions such as, "[C]an you lawfully still arrest a suspect for exercising their God-given ... constitutional rights," that the judge concluded the cross-examination. See Commonwealth v. Clifford, 374 Mass. 293, 305 (1978). The defendant made no offer of proof and has not explained why questions of that nature were necessary to his defense. Therefore, there was no error. See Commonwealth v. Crouse, 447 Mass. 558, 574 (2006).
3. The defendant's Moffett arguments. The defendant, in arguments included in his brief pursuant to Moffett, 383 Mass. at 208-209, relies on case law from Illinois to suggest that the Commonwealth lacked the authority to require him to have a valid driver's license and maintains that he was denied his privilege against self-incrimination under the Fifth Amendment to the United States Constitution by being required to disclose his true name to the police. We have given due consideration to these claims and reject them for substantially the reasons set forth by the Commonwealth in its brief on appeal.
Judgments affirmed.