Opinion
16–P–131
07-10-2017
COMMONWEALTH v. Eric SMALL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of unlawful possession of a firearm and unlawful possession of a loaded firearm. On appeal the defendant argues that (1) the motion judge erred by not suppressing evidence of the firearm; (2) the evidence was insufficient to establish that he constructively possessed the firearm; (3) the trial judge gave an erroneous instruction on constructive possession; and (4) the prosecutor made improper statements in his closing argument. We affirm.
On the Commonwealth's motion, the judge vacated a third conviction of unlawful possession of ammunition, and dismissed the charge as duplicative.
Background. We summarize the evidence presented at the hearing on the motion to suppress. Substantially similar evidence was presented at trial regarding the circumstances of the search and discovery of the firearm. We will reserve discussion of other trial evidence as it becomes pertinent to our analysis.
Although the motion judge made no factual findings, the material facts are not in dispute.
Around 2:00 a.m. on December 27, 2012, two Boston police officers, who were stationed on Lincoln Street, heard gunshots nearby. They drove to the area to investigate and observed several individuals on the sidewalk. When asked what happened, the individuals seemed "unsure whether or not to say anything" until one of them responded, "Fuck it. They shot at us." They then pointed down South Street towards Kneeland Street and said, "[T]hey went that way in a black Magnum."
The officers immediately drove in that direction and, less than a minute later, observed a black Dodge Magnum turning from Utica Street, a dead-end street, onto Kneeland Street. The officers stopped the vehicle, ordered its three occupants out, and pat frisked them but recovered no weapons. When a search of the vehicle also unearthed no weapons, the officers called for a canine unit to come to the scene to perform "a more thorough investigation." Approximately ten to thirty minutes later, Officer Kevin Watson arrived with an explosive-detection dog, who alerted on the center dashboard of the vehicle. Officer Watson pulled on the dashboard and noticed that the lower-left side was loose. He inserted a small knife into the area, and the dashboard "popped right open," revealing a firearm inside.
The search included the area under the seats, console, glove compartment, and rear cargo space.
Discussion. 1. Motion to suppress. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The motion judge concluded here that the police had probable cause to stop the vehicle. The defendant's brief does not challenge that determination or cite to any case law demonstrating that the judge was incorrect. Instead, the defendant assumes that the stop was supported only by reasonable suspicion. Proceeding from that assumption, he argues that reasonable suspicion dissipated after the officers' initial search did not turn up any weapons, thereby rendering the subsequent canine search unlawful. We agree with the judge, however, that the police had probable cause, not just reasonable suspicion, to effectuate the stop and that, as a result, the canine search was justified.
Under the "automobile exception" to the warrant requirement, a warrantless search of a vehicle in a public place "is reasonable and permissible where probable cause exists to support the search." Commonwealth v. Johnson, 461 Mass. 44, 49 (2011). In determining probable cause, we look to "whether ‘the information possessed by police, at the time of the proposed warrantless search, provide[d] a substantial basis for the belief that there [was] a timely nexus or connection between criminal activity, a particular person or place to be searched, and particular evidence to be seized.’ " Commonwealth v. Dame, 473 Mass. 524, 536–537 (2016), quoting from Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 470 (2007). Police may search a vehicle without a warrant if there is an adequate "connection between the crime and the vehicle." Id. at 537.
Here, the following facts established such a connection: the officers heard gunshots; shortly thereafter, witnesses in the area told the officers that they had been shot at and that the shooters went down South Street towards Kneeland Street in a black Magnum; and, less than one minute later, the officers observed a black Magnum turning onto Kneeland Street. This evidence was sufficient to give rise to probable cause that the firearm used in the shooting would be found in the vehicle. See Commonwealth v. Hernandez, 473 Mass. 379, 384–386 (2015) (even though there was "six-hour gap between the armed robbery and the stop" and no "specific description of the perpetrators," probable cause existed to search vehicle where it "match[ed] the exact description of the vehicle used in the armed robbery" and driver engaged in evasive maneuvers). In turn, because there was probable cause, the officers were justified in searching "every part of the vehicle and its contents that may [have] conceal[ed]" the firearm. Commonwealth v. Cast, 407 Mass. 891, 906 (1990), quoting from United States v. Ross, 456 U.S. 798, 825 (1982). The canine search was therefore proper. See Commonwealth v. Lawson, 79 Mass. App. Ct. 322, 328 (2011), overruled in part on other grounds by Commonwealth v. Campbell, 475 Mass. 611, 617 n.9 (2016) (use of drug-sniffing dog justified by existence of probable cause that narcotics would be found in vehicle). Cf. Commonwealth v. Gouse, 461 Mass. 787, 793 (2012) (officers properly searched "entire vehicle and all containers therein" where they had probable cause that defendant had firearm and it was not found on his person).
We reject the defendant's argument that the officers unduly prolonged the stop in order to conduct the canine search. In so arguing, the defendant again assumes that the stop was supported only by reasonable suspicion. And even accepting that assumption for argument's sake, we still conclude that it was permissible for the officers to detain the defendant while awaiting the arrival of the canine unit. Given the evidence of shots fired, a crime posing a serious threat to public safety, detaining the defendant for an additional ten to thirty minutes was a reasonable and proportional measure to effectuate the purposes of the stop. Cf. Commonwealth v. Feyenord, 445 Mass. 72, 81–82 (2005) (thirty-minute detention of defendant for purpose of summoning canine unit was proportional response to suspicion that emerged over course of routine traffic stop).
2. Sufficiency of evidence. The defendant next argues that there was insufficient evidence to establish that he possessed the firearm. In evaluating his argument, we review the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433 U.S. 307, 318–319 (1979).
The Commonwealth proceeded on a theory of constructive possession, which requires "proof that the defendant had ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Than, 442 Mass. 748, 751 (2004), quoting from Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). Although possession cannot be established by a defendant's mere presence in a vehicle where contraband is discovered, presence "supplemented by other incriminating evidence" may suffice to establish the elements of knowledge and control. Commonwealth v. Garcia, 409 Mass. 675, 687 (1991).
In this case the jury could have readily inferred knowledge from the strong circumstantial evidence that one of the vehicle's occupants had fired the weapon just a few minutes prior to the stop. See Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998). Furthermore, the evidence at trial established that the defendant was driving the vehicle, which was owned by and registered to his mother. The defendant's "control over the car support[ed] an inference that he was acquainted with its contents." Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 416 (1996).
There was also sufficient proof that the defendant had the ability and intent to exercise control over the firearm. His ability to control was established by evidence that he had easy access to the space behind the dashboard, which "popped right open" with minimal force. See Sadberry, 44 Mass. App. Ct. at 936 ; Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 212 (2002). Although his intent to control is a closer question, we conclude that there was enough evidence to support a reasonable inference on that element. The jury could have inferred that the defendant or one of his companions fired the shots, then managed to hide the firearm behind the dashboard before being stopped by the police mere minutes later. Because the vehicle belonged to the defendant's mother, the jury could have further inferred that he knew about the hidden compartment. In addition, the evidence established that the dashboard was "ajar" on "the lower left-hand corner closest to the driver [i.e., the defendant]." Viewing this evidence in the light most favorable to the Commonwealth, we are persuaded that this case is "in the category of automobile decisions in which a defendant's proximity, access, and collateral conduct ... permitted the inference of an intention to exercise control over ... forbidden weaponry in the vehicle." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 (2013). See Sadberry, 44 Mass. App. Ct. at 936 (constructive possession established where "defendant or one of his companions" had recently fired shots, firearm was found under defendant's seat, and other incriminating evidence was found in vehicle).
3. Jury instruction on constructive possession. The judge instructed the jury on constructive possession by giving District Court Model Jury Instruction 3.220. The defendant argues that the judge erred by denying his request for a further instruction that "mere control over the property in which the gun is located is not enough to find the [d]efendant guilty." We disagree. "The failure to give a requested jury instruction is reversible error only if the requested instruction is (1) substantially correct, (2) was not substantially covered in the charge given to the jury, and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense" (emphasis omitted). Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013), quoting from Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519 (1993). Here, the language requested by the defendant was already substantially covered in the following portion of the instruction given by the judge:
"I caution you to remember that merely being present in the vicinity of a firearm, a loaded firearm, and/or ammunition even if one knows that it's there does not amount to possession. To show possession, there must be evidence justifying a conclusion that the defendant had knowledge of the firearm, the loaded firearm, and/or ammunition coupled with the ability and the intent to exercise control over those items."
The judge's instruction accurately stated the law, and his denial of the requested instruction was not reversible error.
4. Closing argument. The defendant challenges the prosecutor's closing argument on two grounds. Because he preserved both challenges with timely objections at trial, we review for prejudicial error. See Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015).
The defendant first argues that the prosecutor appealed to the emotions of the jurors by making the following statements about gun control:
"Whether you're for stricter gun control or against gun control or neutral, I think you can all agree Legislatures across the country including our [L]egislature in the [c]ommonwealth of Massachusetts enacts firearm laws for public safety. You load this sucker with ammunition and you pull the trigger, someone could die. We aren't talking about a water gun. We sure aren't talking about a cap gun. That's the real thing."
Although we agree that these statements were ill-advised, they were "unlikely to have affected the jury's verdict, and therefore [are] not cause for reversal." Commonwealth v. Silanskas, 433 Mass. 678, 702 (2001). The prosecutor did not misstate the law or the purpose of firearms legislation. In addition, the judge instructed the jury that closing arguments are not evidence; that the jury were "not to be swayed by prejudice or sympathy, by personal likes or dislikes towards either side"; and that they were "not to allow [them]selves to be influenced because the offenses charged are popular or unpopular with the public." We presume that the jury followed these instructions. See ibid.
The defendant's second claim of error is that the prosecutor misrepresented the evidence by suggesting that a photograph, admitted as an exhibit at trial, accurately depicted the dashboard area of the vehicle prior to processing by the police. According to the defendant, the photograph was in fact taken after the vehicle was processed and so "did not capture the way the possessor of the gun pulled the panel off the dash." The defendant's characterization is supported by Officer Watson's testimony that he left the dashboard "open only a couple of inches" and that it appeared "much more open" in the photograph.
Nonetheless, we discern no prejudice from the prosecutor's argument. The import of the argument is not altogether clear, and the defendant fails to identify how, specifically, it prejudiced him. In fact, the prosecutor appeared to suggest that the photograph supported an inference that the dashboard was opened from the passenger side, rather than by the defendant from the driver's side. In these circumstances we are satisfied that the argument was unlikely to have affected the jury's decision to convict. Any potential prejudice was mitigated by the judge's instructions that closing arguments are not evidence and that the jury were "the sole and exclusive judges of the facts." Again, we presume that the jury followed these instructions. See Silanskas, 433 Mass. at 702.
The prosecutor argued, "And I also think it's important to look at the photograph of the center dash where the radio is being pulled away from. You know, defense counsel made a big argument that, yes, the ignition is right here, but the passenger seat's right there. Look at how the radio is being pulled back or the center-dash area is being pulled away. It's actually being pulled towards the passenger."
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Judgments affirmed.