Opinion
16-P-132
04-18-2017
COMMONWEALTH v. Joseph E. WARREN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of unlawful possession of a firearm, in violation of G. L. c. 269, § 10(a ) ; carrying ammunition without a firearm identification card (FID), in violation of G. L. c. c. 269, § 10(h ) ; and carrying a loaded firearm without an FID card, in violation of G. L. c. 269, § 10 (n ). On appeal, he argues that his motion to suppress the firearm and ammunition on which his convictions were based and his motion to dismiss the charges on the grounds that he was not brought to trial within twelve months of his arraignment as required by Mass.R.Crim.P. 36, 378 Mass 909 (1979), should have been allowed. He also challenges the sufficiency of the evidence. We affirm.
The defendant also was charged with possession of a firearm with a defaced or obliterated serial number, in violation of G. L. c. 269, § 11B ; however, the judge allowed the defendant's motion for a required finding of not guilty as to this charge.
Discussion. 1. Motion to suppress. Prior to trial, the defendant moved to suppress a loaded firearm, which was seized by the police from his waist during what he claims was an illegal stop and patfrisk. The motion was denied following an evidentiary hearing, by the same judge who later presided over the defendant's trial. We summarize the facts, which are not disputed, found by the motion judge.
At approximately 2:25 A.M. on January 3, 2009, Boston Police Officer Alicio Marrero was on patrol in the Orchard Park area of Roxbury when he saw a man lying in the street bleeding from a gunshot wound to his thigh. The victim was conscious. He provided his name and a description of the suspects, two black males wearing all black clothing, and said that the two men ran towards Adams Street. Officer Marrero transmitted this information over the police radio.
At about the same time, Officer John Rogers, who was assigned to a detail shift nearby, heard three or four gunshots. As he was driving toward the area where he believed the shots had been fired, he received a radio dispatch to be on the lookout for "two black males, dressed in all black, running down Adams Street towards Orchard Park." Officer Rogers drove to where the victim was and then drove towards Adams Street for three to four blocks when he saw two men fitting the description provided in the dispatch. There was no one else in the area. Officer Rogers drove by the two men, without activating his lights or siren, and requested backup. Within a few minutes, Officers Javier Velasquez and John Quinn arrived and approached the men, both of whom kept looking from side to side and had their hands in their pockets. The officers ordered the two, multiple times, to show their hands. Neither did so. Officer Velasquez then "bumped" into one of the men, later identified as the defendant, whereupon the defendant placed his hand on his waist. Concerned for his safety, Officer Velasquez frisked the area of the defendant's waist and felt a hard object, which turned out to be a loaded firearm. Meanwhile, the other suspect ran away. Ultimately, he was apprehended by Officer Quinn.
On the basis of these findings, the judge concluded that the officers had "a specifiable and reasonable suspicion that warranted the[m] ... to pursue, stop, detain, and pat frisk" the defendant. Accordingly, she ruled that the seizure of the firearm was lawful and denied the motion to suppress.
In reviewing a decision on a motion to suppress, "we accept the ‘judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.’ " Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 707 (2011), quoting from Commonwealth v. Washington, 449 Mass. 476, 480 (2007). In this case, we agree with the reasoning of the motion judge in all respects.
As the judge observed, the police must have reasonable suspicion based on "specific, articulable facts and reasonable inferences [drawn] therefrom" to conduct a lawful investigatory stop. Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Where, as here, the police rely on a radio transmission to conduct an investigatory stop, the Commonwealth must establish the reliability of the source of information on which the radio call was based. Although the judge did not directly address the question whether the information was reliable, the facts establish the requisite indicia of reliability.
Here, contrary to the defendant's assertion that the stop was "totally based upon information received from an unknown individual furnished via a radio broadcast" the judge found that the victim identified himself by name. Moreover, given his condition, it was clear that a crime had been committed. The victim provided a description of the perpetrators, which was immediately broadcast over the police radio by Officer Marrero, who, based on his observations, had first-hand knowledge that a crime had been committed. That knowledge was properly imputed to the other officers under the collective knowledge doctrine. See Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480–481 (2007). Within minutes and in close proximity to the location of a serious crime, the police saw two men fitting the description provided. While it is true that the description of the suspects could have matched a large number of individuals, there was no one else around at the time and, significantly, when the police approached them, both men looked from side to side as if looking for an opportunity to escape, which one of them subsequently attempted to do. These facts justified an investigatory stop. See Commonwealth v. Depina, 456 Mass. 238, 247 (2010) ("Physical proximity, closeness in time, the defendant's obvious effort to avoid encountering the police, and the danger to public safety supplemented the less than distinctive physical description relayed in the police dispatch").
The subsequent pat frisk of the defendant also was lawful. Both men failed to remove their hands from their pockets upon command and then the defendant placed his hand on his waist. Officer Velasquez had a legitimate concern for his safety thereby justifying a pat frisk. See Commonwealth v. Rock, 429 Mass. 609, 612–613 (1999) (patfrisk "supported by a reasonable belief ... that the defendant was armed and potentially dangerous," where police encountered two men running from area of a reported shooting, and the defendant attempted to conceal from officers a bulge under his shirt near his right hip). Because the stop and pat frisk were lawful, the defendant's motion to suppress the firearm and ammunition recovered by the police was properly denied.
2. Denial of the defendant's motion to dismiss. The defendant filed a motion to dismiss the charges for want of a speedy trial under Mass.R.Crim.P. 36, and on constitutional grounds. After a hearing, the motion was denied.
The docket reflects that the judge, who, from what we can discern, was a different judge than the one who denied the motion to suppress and presided over the trial, "adopt[ed] the calculations of time for rule 36 purposes in the Commonwealth memorandum opposition."
A criminal defendant who is not brought to trial within twelve calendar months of the "return day," here the arraignment, "is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay." Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). "The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods' provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay." Ibid (alterations original). Accord Barry v. Commonwealth, 390 Mass. 285, 292 (1983). A defendant "may be deemed to have acquiesced in the delay by failing to object to continuances." Commonwealth v. Fling, 67 Mass. App. Ct. 232, 235-236 (2006), and cases cited.
Here, the record shows that of the 1,292 days since the defendant was arraigned in 2009, approximately 1,167 of those days are excludable due to the pendency of pretrial motions, see Mass.R.Crim.P. 36(b)(2)(A)(v), 378 Mass. 910 (1979), the unavailability or absence of a necessary witness, see Mass.R.Crim.P. 36(b)(2)(B), 378 Mass. 911 (1979), the defendant's default, see Commonwealth v. Pacifico, 27 Mass. App. Ct. 254, 257 (1989), or because the continuances were either requested by the defendant or he assented to them by agreement or failure to object. See Spaulding, supra. Therefore, there was no violation of rule 36, and the judge did not err in denying the defendant's motion to dismiss.
We acknowledge the Commonwealth's postargument letter, filed pursuant to Mass.R.A.P. 16(l ), as amended, 386 Mass. 1247 (1982), in which the prosecutor admirably corrected the argument made in the brief and at oral argument, that the thirty-six days between January 17 and February 22, 2012, are not excludable under Mass.R.Crim.P. 36(b)(2)(D), 378 Mass. 911 (1979).
The defendant also claimed that his right to a speedy trial under art. 11 of the Massachusetts Declaration of Rights was violated. A speedy trial violation is distinct from a violation of rule 36. However, our cases hold that the analysis "under the Federal and State Constitutions are sufficiently similar" to the analysis under rule 36, so as to be instructive. Commonwealth v. Butler, 464 Mass. 706, 716 n.14 (2013). Given our conclusion that there was no violation of rule 36 and, more importantly, the absence of a showing of prejudice as a result of the delay, we conclude that there was no violation of the defendant's rights under art. 11.
3. Sufficiency of the evidence. In order to meet its burden of proof, the Commonwealth was obligated to prove that the firearm was operable. The defendant challenges the sufficiency of the evidence on this element of the offense, arguing that because the gun was missing its grips and magazine release in 2010, the Commonwealth failed to prove that it was operable when it was seized from him in 2009. This argument ignores the evidence and the standard we apply in determining the sufficiency of the evidence.
G.L. c. 269, § 10(a ), requires the Commonwealth to prove that the defendant possessed a firearm that was capable of firing a shot or bullet. See G. L. c. 140, § 121 (defining a firearm for the purposes of G.L. c. 269, § 10(a ) ).
" ‘The burden on the Commonwealth in proving that the weapon is a firearm in the statutory sense is not a heavy one. It requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire.’ " Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 15 (2010) (emphasis original), quoting from Commonwealth v. Nieves, 43 Mass. App. Ct 1, 2 (1997). The evidence was more than sufficient to prove beyond a reasonable doubt that the firearm was operable as required by the statute.
First, after waiving his Miranda rights, the defendant told Detective James Sheehan that the firearm was operable. Second, in addition to the defendant's statements, there was evidence that the firearm had been test fired in 2009 by Detective Martin Lydon and Sergeant-Detective James O'Shea. A "Firearm Analysis Certification," prepared by Detective Lydon on January 18, 2009, and subsequently admitted in evidence, stated that after "[h]aving examined [the firearm] and successfully test fired ammunition[,]" Detective Lydon certified that is was a firearm as defined by G. L. c. 140, § 121. This gives rise to a reasonable inference that the firearm was operable when it was seized from the defendant fifteen days earlier. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 247 (2011) (a ballistics certificate "proved, for sufficiency purposes, ... that the .44 caliber weapon met the statutory definition"). Moreover, Detective Lydon testified that, in his opinion, the missing grips and magazine release did not render the gun inoperable.
On cross-examination, Detective Sheehan testified that the defendant stated he did not know whether the gun could fire because he had never shot it. To the extent that there are inconsistencies in Detective Sheehan's testimony, it is the jury's province to sort them out. See Commonwealth v. Pontes, 402 Mass. 311, 320 n.8 (1988).
At the Commonwealth's request, the gun was retested in 2010 because Detective O'Shea had retired. When Detective Lydon retested the gun in 2010, the grips and the magazine release had been removed. The record does not indicate how or why the grips and the magazine release were removed.
Finally, the defendant argues that his motion for a required finding of not guilty should have been allowed because the Commonwealth did not prove that he did not possess an FID. This precise argument was considered and rejected by the Supreme Judicial court in Commonwealth v. Powell, 459 Mass. 572, 582 (2011), cert. denied, 565 U.S. 1262 (2012).
Judgments affirmed.