Opinion
No. 11–P–1651.
2013-08-6
COMMONWEALTH v. Elston BONE.
By the Court (COHEN, KATZMANN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions, after a Superior Court jury trial, on five counts of unlicensed possession of a firearm, rifle, shotgun, or ammunition in violation of G.L. c. 269, § 10( h )(1), and two counts of improper storage of a firearm in violation of G.L. c. 140, § 131L( a ). We affirm.
1. Motion to suppress. The defendant argues that it was error to deny his pretrial motion to suppress guns and ammunition seized from the apartment he shared with his wife. In reviewing the motion judge's decision, we accept her subsidiary findings of fact absent clear error, and review independently the application of constitutional principles to the facts found. Commonwealth v. Nattoo, 452 Mass. 826, 831 (2009). We take the facts from those found by the judge, supplemented with uncontroverted testimony which, we infer, she credited. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). On September 18, 2007, at approximately 10:00 P. M., three Randolph police officers were dispatched to respond to a 911 call reporting a domestic disturbance at an apartment at 8 Francis Drive. When they arrived, Leticia Bone opened the door. She was visibly shaken and weeping, and there were red marks visible on her neck. No one else was present.
After the officers calmed her down, Ms. Bone reported that her husband, the defendant, had become enraged by something she said while they were out at the gym. When they got home, he threw her into a bedroom closet, jumped on top of her, slapped her, and tried to choke her. When she told him that she would call the police, he responded, “go ahead,” and left the apartment, taking her car. She did not know where he was going.
Without being asked, Ms. Bone volunteered that the defendant had several firearms in the apartment. She led the officers to the bedroom, opened the drawer of the nightstand, and removed a Ruger handgun in a plastic case. For safety reasons, the officers asked her not to handle it, so she stopped and put it down. The police examined it, observing that it did not have any type of trigger or safety lock, and that it contained a fully loaded magazine.
The officers then asked about any other weapons in the apartment. Ms. Bone revealed that there were two shotguns and a rifle under the bed, and led the officers to the bedroom closet to show them the ammunition for those weapons. The police examined the shotguns and the rifle, and discovered that, like the handgun, the rifle had no locking mechanism and was loaded. Ms. Bone advised the police that these items were owned by the defendant, and that they used to live in New Hampshire, where he had a license to carry at some point. She “did not believe,” however, that he had a Massachusetts FID card. Because “the system was down,” the officers were unable to confirm the defendant's licensure status immediately. When they left the apartment, they took the firearms “for safekeeping,” because, during “a domestic case where the suspect involved has fled the scene, has access to the home and could come back,” it was their practice to secure firearms “for the victim's safety.” At that point, Ms. Bone was trying to find another place to stay, but she had not made definite plans. The following morning, the police were able to confirm that the defendant did not have an FID card.
Although the officers never saw the defendant during their visit to the apartment, one officer testified that he saw a photograph in the living room of Ms. Bone with a man. At the suppression hearing, the defendant was identified as the same man that the officers observed in the photograph.
In denying the motion to suppress, the judge ruled that the discovery of the firearms and ammunition was proper, as it resulted from a consensual entry into the apartment and the voluntary production of the items by Ms. Bone. She also ruled that the police were entitled to temporarily seize the firearms in order to protect a domestic violence victim from any further, future danger.
On appeal, the defendant argues that the police had no justification for removing the firearms from the home. We disagree for several reasons.
First, two of the firearms (the handgun and the rifle) were being stored in violation of G.L. c. 140, § 131L; and, while the police were unable to confirm the defendant's licensure status because the “system was down,” they had been told by the defendant's wife that all of the guns were owned by him, and that she “did not believe” he had an FID card. Thus, contrary to the defendant's contention, the officers had probable cause to believe that the firearms were contraband and could seize them on that basis.
We may affirm the judge's decision on a ground different from that on which she relied, so long as it is supported by the record and the findings. Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
In addition, the circumstances were such that the officers reasonably could assume that Ms. Bone had the authority not only to allow the police access to the apartment, but also to reveal items that were kept in the couple's bedroom in areas under her joint control (the unlocked nightstand, under the couple's bed, and in the bedroom closet), and to consent to their removal. See Commonwealth v. Aviles, 58 Mass.App.Ct. 459, 463–464 (2003) (defendant's wife could consent to seizure of husband's T-shirt by the police); see also Commonwealth v. Porter P., 456 Mass. 254, 265–266 (2010); Commonwealth v. Lopez, 458 Mass. 383, 392–393 (2010).
Finally, despite the defendant's argument to the contrary, whether or not Randolph has a formal policy authorizing the removal of firearms during domestic violence calls, the temporary removal of the defendant's weapons was a reasonable response to a dangerous situation. Ms. Bone's report of serious acts of domestic violence (corroborated by the marks around her neck and her hysterical demeanor), the uncertainty of her being able to find another place to go, and the risk that her husband might return and do her further harm, provided sufficient justification for the temporary removal of the weapons. See G.L. c. 209A, § 6 (“Whenever any law officer has reason to believe that a family or household member has been abused or is in danger of being abused, such officer shall use all reasonable means to prevent further abuse”). Cf. Commonwealth v. Snell, 428 Mass. 766, 775 (1999) (warrantless entry deemed proper when evaluated “in the context of domestic violence”). See United States v. Rodriguez, 601 F.3d 402, 408 (2010) (temporary seizure of shotgun by police during domestic disturbance call permissible even before illegality of weapon became apparent).
2. Hearsay testimony. The defendant complains that, at trial, two of the testifying police officers referred to statements made to them by Ms. Bone, notwithstanding a ruling in limine excluding reference to these statements. All but one of the statements identified by the defendant were elicited in response to questioning by the defense during cross-examination. Defense counsel moved to strike only one such response, and the motion was allowed. Defense counsel also objected to the single statement elicited during questioning by the prosecution, and that objection was sustained. In other words, whenever the defense called the judge's attention to the issue, the judge excluded the evidence.
The defendant does not argue that his counsel was ineffective in failing to move to strike the remaining statements. Nor could he do so successfully where the questioning furthered a strategy—attempting to prove that the defendant did not reside in the apartment and, hence, was not in constructive possession of the guns and ammunition—that was not manifestly unreasonable. See Commonwealth v. Hernandez, 63 Mass.App.Ct. 426, 431 (2005). Rather, his argument rests on the assumption that the judge was required to intervene sua sponte. Suffice it to say that the judge was under no obligation to do so. See Commonwealth v. Pimental, 54 Mass.App.Ct. 325, 330 (2002).
3. Sufficiency of the evidence. The defendant claims that his motion for a required finding of not guilty should have been allowed. He does not dispute that the Commonwealth proved that the firearms and ammunition were in the apartment; his argument is that it was not proved that he possessed or improperly stored them.
Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), the evidence established that the defendant told the police at booking that he was married; he identified the apartment where the weapons were seized as his home address; the apartment was small and contained only one bedroom with a single closet; the Ruger handgun was found in the only bedroom nightstand;
and the remaining guns were found under the bed. One of the officers testified to the existence of a photograph depicting a man and a woman together, and to the presence of male clothing. Finally, during cross-examination by defense counsel, one of the officers testified that Ms. Bone stated that the guns were not hers.
There was no evidence that there was more than one nightstand, and the officer who was asked about it could recall only one.
This evidence sufficed to permit the jury to find that the defendant resided in the apartment with Ms. Bone, constructively possessed the guns and ammunition present in that location, and stored two of the weapons illegally.
The defendant did not move to strike this testimony. Although it was hearsay, once admitted, it could be considered and weighed with the other evidence. See, e.g., Commonwealth v. Raymond, 424 Mass. 382, 388 (1997).
To meet its burden of proving the defendant's guilt, the Commonwealth was not required to exclude Ms. Bone as a “lawfully authorized user” under G.L. c. 140, § 131L( a ); nor was the Commonwealth required to prove that Ms. Bone lacked an FID card or license to carry. See Commonwealth v. Runyan, 456 Mass. 230, 237 n.9 (2010). Likewise, the judge was not required to give the defendant's requested instructions to that effect.
4. Instruction on possession. Although he did not object at trial, the defendant now claims that a portion of the judge's instruction on constructive possession was phrased in terms too close to the facts because it referred to “things you keep in your bureau drawer at home.”
In the circumstances, however, the example did not “unfairly emphasize the Commonwealth's view of the facts.” Commonwealth v. Hicks, 377 Mass. 1, 10 (1979). The defendant did not dispute that a gun was removed from the nightstand drawer in the apartment occupied by Ms. Bone when the police arrived. His defense was that it was not proved that the apartment was his home at the time. We discern no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293–294 (2002).
The judge instructed, “An object is considered to be in a person's possession if that person has the ability to exercise control over that object, either directly or through another person. For example, the law considers you to be in possession of things that you keep in your bureau drawer at home or in a safe deposit box at your bank.” This instruction, which is based on the Model Jury Instructions for Use in the District Court, has been held correct as a matter of legal principle. Commonwealth v. Than, 442 Mass. 748, 753–754 (2004).
5. Constitutional challenges. The defendant's constitutional arguments as to G.L. c. 269, § 10( h )(1), are without merit. The requirement of licensure before obtaining possession of a firearm or ammunition does not by itself render the licensing statute unconstitutional on its face. Commonwealth v. Johnson, 461 Mass. 44, 58 (2011), citing Commonwealth v. Loadholt, 460 Mass. 723, 726 (2011). Furthermore, it is well established that where, as here, the defendant has failed to apply for (and be denied) an FID card, he may not challenge his conviction as unconstitutional under the Second Amendment to the United States Constitution. See Commonwealth v. Powell, 459 Mass. 572, 589–590 (2011); Commonwealth v. Loadholt, supra at 725; Commonwealth v. Johnson, supra at 58–59; Commonwealth v. Gouse, 461 Mass. 787, 801 (2012).
The defendant's argument that his Second Amendment rights were infringed by G.L. c. 140, § 131L( a ), is foreclosed by Commonwealth v. McGowan, 464 Mass. 232, 233 (2013).
Judgments affirmed.