Opinion
11-P-192
04-17-2012
COMMONWEALTH v. JUTSON B. BONAS.
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
The defendant was convicted of various charges arising from a traffic stop during which police recovered a loaded firearm from the purse of Kareen Williams, a passenger in the car that the defendant was driving. On appeal, the defendant argues that his pretrial motion to suppress should have been allowed, that trial counsel was ineffective for failing to seek reconsideration of the judge's denial of the motion to suppress, and that there was insufficient evidence for the charge of receiving stolen property. We affirm.
A jury convicted the defendant of carrying a firearm without a license, possession of ammunition without a firearm identification card, receiving stolen property valued over $250, unlicensed operation of a motor vehicle, carrying a loaded firearm without a license, and operating an uninsured motor vehicle. The defendant was found responsible by the judge on the civil infraction of operating an unregistered motor vehicle.
Facts. On the evening of February 10, 2008, four Boston police officers were on patrol when they observed a car make a right turn 'moving quickly.' After checking the license plate number, they discovered that the vehicle's registration had been revoked for failure to maintain insurance. The officers followed the car, which stopped across the street from a building. By the time the officers pulled up to the car, the defendant had exited and was at the basement door of the building.
We recite the relevant facts found by the motion judge, supplemented by undisputed testimony at the suppression hearing, which the judge implicitly credited. See Commonwealth v. Eddington, 459 Mass. 102, 104 n.6 (2011).
The officers asked Williams to step out of the car and frisked her and the immediate area where she had been sitting. Williams left her purse open on the seat, and the officer conducting the frisk was able to see that it contained only papers and miscellaneous items. The defendant then returned and told the officers that he had gone inside to use the bathroom. He was 'calm and matter of fact.' The officers informed him that the car's registration was revoked, and that he could not drive it. After telling him that they could have arrested him, they agreed to allow him to leave the car parked in his 'friends' driveway.'
Approximately twenty minutes later, the officers saw the defendant and Williams again driving in the same vehicle. They stopped the car, intending to arrest the defendant. When the defendant stepped out of the car, he was so nervous that he could hardly speak, he stuttered, and his whole body shook. When asked if he had any weapons, he did not reply. Williams was clutching her purse closely to her chest, which drew the attention of the officer who previously had seen it open on the car seat. He asked Williams if there was 'anything in this purse that shouldn't be,' and she answered, 'Yes, there is.' The officer asked Williams to hand over the purse, and she complied. The officer noticed that the purse was unusually heavy for its size, and felt a solid object which, based on his training and experience, he believed to be a firearm. He opened the purse and recovered a loaded firearm.
The motion judge apparently did not remember the officer's precise testimony about the question he asked Williams. In her findings, the judge wrote that the officer asked Williams 'if there was something in the purse ' that might hurt' them.' We rely upon the testimony as given by the officer.
Discussion. 1. Motion to suppress. Contrary to the defendant's position, the police had reasonable grounds to ask Williams about the contents of her purse, to pat frisk it, and to seize the firearm. The defendant's visibly nervous demeanor, his inability or unwillingness to answer the officer's question about a weapon, and the behavior of Williams in clutching the closed purse to her chest, gave the officers reasonable cause to be concerned for their safety and to conduct an investigative stop of Williams. Based upon her affirmative response to the inquiry whether there was something inside the purse that was not supposed to be there, Williams was asked to hand it to one of the officers, and she did so. The officer did not immediately open it; instead he felt that it was very heavy, particularly for its size, and patted it down -- doing only what was minimally necessary to assure that Williams did not have access to a suspected weapon. See Commonwealth v. Pagan, 440 Mass. 62, 69 (2003). Once he felt what he believed, from his training and experience, to be a firearm, the officer had probable cause to open the purse and seize the firearm.
In reviewing the denial of a motion to suppress, we accept the motion judge's findings of fact 'absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law.' Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).
The defendant does not contend that it was improper for the police to require both the defendant and Williams to get out of the vehicle, nor could he plausibly do so. When the police saw the defendant again driving the unregistered, uninsured car, they were entitled to stop the vehicle, arrest the defendant, and tow the vehicle.
2. Ineffective assistance. The defendant claims that his trial counsel was ineffective in failing to seek reconsideration of the denial of the motion to suppress, in light of Williams's trial testimony that she responded 'no,' when the officer asked her if there was anything in her purse that should not be there. Even though claims of ineffective assistance ordinarily should be raised in a motion for a new trial, see Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), we elect to address the issue because it is patently without merit. There was no ineffectiveness, because the motion would have been futile. See Commonwealth v. Carroll, 439 Mass. 547, 557 (2003). It would have raised no new issue, the relevant law had not changed, and Williams's trial testimony did not support the conclusion that substantial justice required reconsideration. See Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 2 (1993).
Williams had been a codefendant in the case and filed her own motion to suppress, which was heard along with the defendant's motion by the same judge who presided at the defendant's trial. At that time, Williams took the position that she consented to the search that led to the discovery of the firearm.
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3. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was sufficient evidence to prove the charge of receiving stolen property. It was not necessary for the Commonwealth to prove that the defendant knew that the firearm had been reported stolen in 1997. 'The requirement that a defendant have guilty knowledge of the stolen status of the acquired goods does not mean . . . that direct evidence of actual knowledge is necessary.' Commonwealth v. Dellamano, 393 Mass. 132, 138 (1984). Here, the defendant's knowledge that the firearm was not lawfully his to possess could be inferred from the circumstances, including his statement to Detective Brooks that he picked up the weapon after he saw someone place it under a piece of plywood and run away.
Judgments affirmed.
By the Court (Cohen, Fecteau, & Brown, JJ.),