Opinion
10-P-1238 10-P-1459
03-27-2012
COMMONWEALTH v. TYSHA RHODES (and three companion cases).
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
After having moved unsuccessfully to suppress certain evidence, two handguns, the defendant, Tysha Rhodes, and her codefendant, Lamar R. Ford, were each found guilty by a judge, sitting without a jury, of one count of unlawfully carrying a firearm without a license, G. L. c. 269, § 10(a), and one count of unlawfully carrying a loaded firearm without a license, G. L. c. 269, § 10(n).
On appeal, the defendants contend that their convictions must be vacated because (1) the evidence obtained by the police after a warrantless stop of the motor vehicle in which they were passengers was based upon an uncorroborated tip from an unidentified and unidentifiable informer, and therefore unreliable, (2) their respective trial counsel was ineffective for stipulating to the contents of a ballistician's report, and (3) the statute governing the application and approval of licenses to carry firearms, G. L. c. 140, § 131, is facially unconstitutional. In addition, defendant Rhodes argues that the trial judge mistakenly believed that he lacked authority to reduce her conviction pursuant to Mass.R.Crim.P. 25, 378 Mass. 896 (1978). We affirm.
Background. At the hearing on the defendants' motion to suppress evidence, Massachusetts State Trooper Timothy Doyle and five Fitchburg police officers testified. The motion judge's findings, which are supported in the record, may be summarized as follows. On January 23, 2009, around 1:40 A. M., the Fitchburg police department received a 911 call in which the caller reported seeing a person threaten a patron with a silver handgun at the Wine Cellar, a local bar. The caller also stated that the person with the handgun was a black male who got into a white Pontiac, with a partial plate number of 'F2D.' The dispatcher relayed a broadcast for officers to be on the lookout for a white Pontiac with a partial plate number of 'F2D' leaving the Wine Cellar on Boulder Drive. Boulder Drive was one of two possible routes of travel from the Wine Cellar.
Codefendant Ford joined in the motion filed by Rhodes.
Trooper Doyle was in a marked cruiser on the corner of Boulder Street and Main Street, approximately one-half mile from the Wine Cellar. Within thirty seconds of receiving the broadcast, he observed a white Pontiac coming from the direction of the Wine Cellar and signaled the driver to stop. Trooper Doyle exited his cruiser, approached the driver side of the vehicle, and spoke with the operator, Stacy Ford. Also present in the vehicle were the defendant Rhodes, seated in the driver's side back seat, codefendant Ford, seated in the front passenger seat, and a fourth individual seated in the rear passenger seat. Trooper Doyle informed the operator that the vehicle matched a description of a vehicle into which a person who had shown a gun had entered. As he was speaking to the operator, members of the Fitchburg police department arrived. One of the officers, Jose Figueroa, ordered the occupants out of the vehicle. Trooper Doyle then looked inside the vehicle and saw a shiny silver handle of a gun on the floor of the front passenger compartment and yelled 'gun.' Officer Steven Gianni reached into the vehicle and removed the gun. During a subsequent search of the vehicle for additional handguns, officer Jason Duval found a white handbag on the floor behind the driver's seat which contained a handgun with one round in the chamber.
Discussion. On appeal, the defendants, relying on Florida v. J.L., 529 U.S. 266 (2000), and Commonwealth v. Gomes, 458 Mass. 1017 (2010), argue that the judge erred in denying their motion to suppress because the tip, by an anonymous caller, stating that someone displayed a gun does not, without more, constitute reasonable suspicion to conduct a stop of the vehicle in which they were passengers. However, the defendants have waived any challenge to the motor vehicle stop because they failed to raise that ground in their motion to suppress.
The theory on which a motion to suppress evidence is presented to the trial court cannot be changed when the motion comes before an appellate court for review. Commonwealth v. Pina, 406 Mass. 540, 542 (1990). Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006). Where a defendant does not alert the motion judge to an argument he makes on appeal, 'the waiver doctrine precludes him from doing so on appeal.' Commonwealth v. Rivera, 429 Mass. 620, 623 (1999).
In their motions to suppress filed below, the defendants only challenged the search of the vehicle under the doctrine of search incident to arrest, see Arizona v. Gant, 552 U.S. 1230 (2009), and did not challenge, expressly or implicitly, the stop or the exit order. Consequently, the motion judge limited the issue to the propriety of the search and not the legality of the stop. ,
At the hearing, the motion judge stated 'the question is in light of recent Supreme Court of the United States and Massachusetts cases, whether or not there was a constitutionally permissible entry into that vehicle by governmental officials.' He later reiterated his understanding of the issue before him by stating that the issue was 'the entry into the car' and the impact of the Arizona v. Gant case.
In view of our conclusion that the issue raised on appeal has been waived, we need not, and therefore do not, address the merits of the claim.
Other issues. We have considered the remaining issues raised by the defendants and, for substantially the reasons set forth in the briefs filed by the Commonwealth, find them without merit and without need of extended discussion.
(a) Ineffective assistance of counsel claim. In order to support an ineffective assistance of counsel claim, a defendant must show that trial counsel made errors that demonstrated 'serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' and, that the errors 'deprived the defendant of an otherwise substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
A claim of ineffective assistance may not be resolved on direct appeal unless the factual basis of the claim appears indisputably on the trial record. See, e.g., Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Since that is not the case here, the defendant's claims of ineffective assistance properly should be brought in the first instance in a motion for a new trial. Accord, e.g., Commonwealth v. Zinser, 446 Mass. 807, 810 (2006) (the preferred method for raising claims of ineffective assistance of counsel is through new trial motions); Commonwealth v. Bell, 455 Mass. 408, 421 (2009)('[T]he trial record alone cannot explain the strategy of trial counsel').
(b) Constitutional challenge to G. L. c.269, § 10(a). The defendants argue that the licensing statute is facially invalid because it (i) fails to provide guidance in the form of statutory language or regulatory mandates to the decision making authority as to who should be granted a license to carry a handgun, (ii) fails to give notice of what conduct the law proscribes and impermissibly delegates basic policy matter to adjudicators for resolution on an ad hoc basis, (iii) impermissibly delegates legislative authority to the executive branch of government, and (iv) fails to utilize the least restrictive means of regulating the right of the individual to bear arms. We are not persuaded.
Neither defendant applied for, nor was denied a license to carry a firearm, and each was arrested on a public street, in an automobile, and in possession of a loaded handgun. Where a defendant does not assert that he or she either applied for, or was improperly denied, a license to carry a firearm under G. L. c. 140, § 131, and instead violated the law, that defendant is precluded from challenging a conviction of carrying a firearm without a license under the Second or Fourteenth Amendments to the United States Constitution. See Commonwealth v. Powell, 459 Mass. 572, 587-591 (2011); Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011); Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 258 (2011).
In addition, we conclude that the challenged statute does not infringe improperly on the defendants' rights under the Second Amendment. The defendants have not cited any case, nor have we found one, in which the United States Supreme Court or the Supreme Judicial Court has determined that a State may not enact legislation placing restrictions on who may purchase, possess and carry weapons or placing restrictions on where such weapons may be carried. The cases relied upon by the defendants, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 130 S. Ct. 3020 (2010), are clearly distinguishable. Those cases dealt with regulations of firearms that either effectuated a total ban on handgun possession or prevented the use of firearms in the home. Commonwealth v. Powell, 459 Mass. at 589.
(c) Mass.R.Crim.P. 25(b)(2) claim. We also find no merit to the defendant Rhodes' claim that the judge denied her motion to reduce the verdict because he mistakenly believed that he lacked the authority to do so. The defendant contends that the judge indicated that he would have reduced Rhodes' conviction of guilty of carrying a handgun if he had the authority to do so. [FN6] We disagree. Read in context, the judge merely informed the defendant that the evidence did not permit him to grant the relief requested.
Rule 25(b)(2) of the Massachusetts Rules of Criminal Procedure grants the judge in a jury trial the authority to 'order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint.' This seldom used provision allows judges to reduce verdicts 'to ensure that the result . . . is consonant with justice' even if the evidence is sufficient to warrant the verdict. Commonwealth v. Woodward, 427 Mass. 659, 666 (1998).
Judgments affirmed.
By the Court (Graham, Grainger & Hanlon, JJ.),