Opinion
15-P-739
04-03-2017
COMMONWEALTH v. James D. SANTRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant, James D. Santry, was convicted of possession of a firearm without a license and possession of a loaded firearm without a license. On appeal, he contends that (1) the motion judge erred in denying his motion to suppress, (2) the trial judge improperly precluded him from effectively presenting a necessity defense, and (3) the trial judge's prejudicial statement before the jury undermined his credibility. We affirm.
The defendant was also convicted of possession of ammunition without a firearms identification card, however, at the Commonwealth's request that count was "dismissed" as "duplicative."
Background. According to the evidence presented at trial, around 8:00 P.M. on July 20, 2012, Boston police Officers Joseph Hanley and Dario Fancelli responded to a radio call in South Boston concerning a "911 caller ... regarding a person who was observed on [the caller's] stoop with a firearm and had since left that location in the direction of M Street Park." The person was described as a white male in his forties, "wearing a white tee shirt, blue jean shorts, [and] carrying what appeared to be Chinese food." The officers learned that this person was "intoxicated," and that he "had the firearm out and appeared to be clicking it." Within ten minutes of receiving the initial call, the officers saw a white male in his forties sitting on a bench in M Street Park, wearing a white shirt, blue jean shorts, and holding a brown paper bag that "appeared to be that which Chinese food is packaged in." The officers drove into the park and approached the man on the bench, who was subsequently identified as the defendant. Officer Hanley testified that he smelled like alcohol. The officers pat frisked him, Officer Hanley felt what he believed was a gun in the defendant's pants pocket, the officers then placed him in handcuffs, and Officer Hanley removed a loaded firearm from the defendant's pocket. When asked if he had a license to carry the firearm, the defendant replied that he did not.
The defendant, appearing pro se, sought to present a "necessity" defense and a "duress" defense at trial. The judge initially precluded the defendant from doing so, but subsequently reconsidered the issue, and allowed the defendant to pursue those defenses. The defendant called three witnesses to the witness stand, and also testified on his own behalf. The judge provided detailed instructions to the jury on necessity and duress.
Discussion. 1. Motion to suppress. The defendant contends that the motion judge erred in denying his motion to suppress because the police did not have reasonable suspicion to stop or frisk him, and because his admission that he did not have a firearm license was elicited without the benefit of Miranda warnings. We disagree.
Part of the recording of the instigating 911 call was played at the suppression hearing. The evidence revealed that a woman residing on East Third Street in South Boston called 911 and relayed her firsthand observations of an approximately forty-five year old man sitting on her porch stairs, taking a firearm out of his pocket, and manipulating the firearm in a manner that made a "clicking" sound. The 911 caller further provided information that the man may have just "touched the handle of the front door of [her] house," was "walking toward M Street Park," was wearing a white shirt and blue jean shorts, was carrying a bag of Chinese food, and she believed he may be intoxicated. The judge concluded, and we agree, that this information was sufficient to support the determination that the police had "reasonable suspicion of criminal activity as well as a reasonable belief that the defendant may be armed and dangerous." Commonwealth v. Narcisse, 457 Mass. 1, 12 (2010). See Commonwealth v. Fraser, 410 Mass. 541, 546 (1991).
In addition, the Boston Police Computer Aided Dispatch (CAD) sheet was marked as an exhibit at the hearing. The testimony and the CAD sheet demonstrated that the 911 caller provided her telephone number, address, and apartment number, and that her name was listed on the CAD sheet.
In addition, the Commonwealth presented evidence at the suppression hearing that satisfied the basis of knowledge and reliability prongs of the familiar "indicia of reliability" analysis. Commonwealth v. DePina, 456 Mass. 238, 243 (2010). The officer's testimony in combination with the 911 tape established that the police had received information from an identifiable caller based on her personal knowledge. See ibid ("An eyewitness's report to police of her recent, firsthand observation satisfies the basis of knowledge prong"). Likewise, the details provided by the caller were corroborated by the police officer's observations of the defendant, sitting on a bench in M Street Park, wearing a white shirt, blue jean shorts, and carrying a bag of Chinese food. See Commonwealth v. Campbell, 69 Mass. App. Ct. 212, 216 (2007). That the 911 caller was "identifiable" further bolstered the reliability of the information that she provided. Ibid.
The defendant also argues that his admission that he did not have a firearm license was elicited without the benefit of Miranda warnings. Contrary to this claim, Officer Fancelli testified that he administered Miranda warnings to the defendant immediately after placing the defendant in handcuffs and securing the firearm. The testimony in the record is clear that these events occurred before any questioning regarding the license to carry. Accordingly, the judge could find that no Miranda violation had occurred and, therefore, properly deny the motion to suppress.
2. Necessity and duress defenses. The defendant claims that the judge erred by initially precluding him from presenting a necessity defense in his opening statement. However, before the defendant presented his case to the jury, the judge reconsidered and, out of an abundance of caution, allowed the defendant to present the defense. A necessity defense can be raised only if four conditions are met: "(1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue." Commonwealth v. Kendall, 451 Mass. 10, 13-14 (2008) (quotation omitted). The defendant maintains that all four conditions were satisfied because, inter alia, he had previously been threatened by a man named Kevin Weeks in the 1980s; Weeks was alleged to have told a third party in 2006 that he and the defendant had "unfinished business"; Weeks allegedly made another threat against the defendant in 2012; Weeks had previously demonstrated a "willingness to kill"; law enforcement authorities had ignored the defendant's pleas for protection; the defendant had applied for a license to carry a firearm, but never received a response; he was in fear of his life; and he felt that he had no alternative.
The defendant intersperses the argument that the judge also precluded him from presenting a "duress" defense. Where the defendant concedes that as a practical matter the requirements of duress and necessity are indistinguishable in the present case, we need only address the necessity defense claim.
The defendant's argument falls short on the first three prongs of the test. The defendant admitted to carrying a loaded firearm, without a license, into an area where he had had prior dealings with Weeks. He was observed on someone else's porch, under the influence, carrying a bag of Chinese food, and subsequently observed by the officers sitting on a park bench with a bag of Chinese food in his lap. The evidence of "imminent danger" is speculative at best. Even if we were to accept the defendant's claim that he felt in imminent danger, the legally required alternative to frequenting the scene of danger was to stay away from South Boston and refrain from the very activity he engaged in. "Where there is an effective alternative available which does not involve a violation of the law, the defendant will not be justified in committing a crime." Commonwealth v. Pike, 428 Mass. 393, 401 (1998), quoting from Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, 379 (1982). Accordingly, the defendant was not entitled to a necessity defense instruction.
The defendant testified, for example, that after the beating from Weeks in 1996, he went to "South Boston court" to "file a restraining order."
Regardless, the defendant cannot persuasively claim prejudice here because the judge did allow him to present that defense, albeit after he had already made his opening statement. She allowed him to call three witnesses, gave him wide leeway to testify as to the purported necessity of carrying a firearm, and admitted far-ranging testimony often grounded in hearsay and speculation. Furthermore, the judge provided both a necessity and duress instruction, neither of which the defendant challenges on appeal. Our review of the trial record compels the conclusion that the defendant was not prejudiced. To the contrary, he benefited from instructions to which he was not entitled.
The defendant also argues that he was improperly prevented from calling a doctor to testify that he had conducted a psychological evaluation of the defendant. We disagree. The witness was not present to testify on the morning or afternoon of the fourth day of trial, contrary to the defendant's representations to the court. Furthermore, the defendant did not notify the Commonwealth of the potential witness until one week before trial, and did not provide a proffer of the witness's proposed testimony beyond the generic claim that he would support the defendant's claim that his "duress" stemmed from living in fear. We discern no prejudicial error.
The defendant also attempted to call Weeks as a witness. Weeks asserted his Fifth Amendment to the United States Constitution privilege against self-incrimination, and did not testify. The defendant does not challenge the validity of Weeks's assertion of the privilege.
3. Trial judge's comment. The defendant contends that a comment by the judge undermined his credibility before the jury. We need not dwell at length on that issue. While testifying at trial, the defendant misstated the substance of a prior witness's testimony. The judge sustained the Commonwealth's objection, and allowed a motion to strike the testimony. Following an exchange with the defendant, the judge reiterated that the testimony had been stricken and stated that the defendant was "misstating the evidence."
The defendant does not contend that the allowance of the motion to strike was improper. Rather, he solely argues that the judge's subsequent comment undermined his credibility.
The defendant did not object to the judge's comment at trial. "However, '[i]n light of the delicate problem that objections to a judge's actions present to defense counsel, we do not weigh heavily against the defendant the absence of' an objection ... [and] we treat the issue as if an objection had been made." Commonwealth v. Perez, 390 Mass. 308, 315–316 (1983). That notwithstanding, we discern no prejudice resulting from the comment in view of the strength of the Commonwealth's case and the judge's clear and comprehensive jury instructions. See Commonwealth v. Fitzgerald, 380 Mass. 840, 847 n.5 & 849 (1980). While it would have been preferable for the judge to have made this comment outside the jury's presence, see id. at 847, viewed in the context of the entire trial, the statement was a proper assumption of the judge's responsibility for controlling the trial and guarding against improper conduct. See Perez, supra.
The judge instructed the jury that she had "no opinion about the facts or what the verdict ought to be." Moreover, the judge instructed the jury as follows:
"You should not consider anything I've said or done during the course of this trial in ruling on motions or objections or comments to the attorneys as any indication of my opinion as to how you should determine and decide the defendant's guilt or innocence. If you believe that I have expressed or hinted any opinion about the facts of the case, please disregard it. I have no opinion about the facts or what your verdict ought to be. That is solely and exclusively your duty and your responsibility. In short, you are to confine your deliberations to the evidence and nothing but the evidence." (Emphasis supplied.)
The judge's instructions were clear and we presume that the jury followed them. See Commonwealth v. Williams, 450 Mass. 645, 651 (2008).
To the extent we do not discuss other arguments made by the defendant, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgments affirmed.