Opinion
13-P-1021
03-24-2016
COMMONWEALTH v. NOAH BREWINGTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a Superior Court jury trial, the defendant was found guilty of carrying a firearm without a license, in violation of G. L. c. 269, § 10(a). Before us is his consolidated appeal from the judgment and from the order denying his motion for a new trial. We affirm the judgment but remand for further proceedings on the motion for a new trial.
Facts. From the evidence at trial, the jury could have found the following facts. In the early morning hours of May 1, 2009, gunshots were fired in the vicinity of Packy Connor's bar in the Roxbury section of Boston. Officer Eliseo Marrero of the Boston police department heard the shots coming from behind him as he was driving in his cruiser along Blue Hill Avenue. Marrero made a U-turn, and, as he approached Packy Connor's, he observed approximately twenty people running away from the bar. One person, later identified as the defendant, ran in a different direction from where the crowd was heading. Marrero noticed that as the defendant ran he held his right arm tight to his waist area, and only his left arm was "pumping." Based on past experience, Marrero knew that firearms are commonly carried in the waistband area, and had observed other suspects, who later were arrested on firearms charges, holding their arms in this way when fleeing on foot.
As Marrero followed the defendant, he saw him jump into the front passenger seat of a Ford Expedition waiting in the middle of the street. Marrero put on his cruiser's lights and siren in an attempt to stop the vehicle, but it took off at a high rate of speed, driving in an erratic manner, and jumping the curb twice. Marrero saw the front passenger door open up, but no one got out. Meanwhile additional police had joined the pursuit, and, eventually, the vehicle came to a sudden stop. Marrero then saw the defendant flee the vehicle and run away, this time running in a normal fashion. His arm was not at his waist, and both arms were "flapping." The defendant was apprehended and, after a brief struggle, placed in custody. Thereafter, the firearm forming the basis of the charge against the defendant was recovered from the vehicle in which he had been riding.
Discussion. 1. Trial issues. a. Preliminary jury instructions. The trial judge prefaced her preliminary instructions with the following comment: "If you have been a juror before, you know everything I am about to say[,] but for someone who has not sat as a juror, this may be helpful." The defendant argues that this comment violated the defendant's constitutional rights by diminishing the importance of the ensuing preliminary instructions on presumption of innocence and the concept of reasonable doubt. Because the defendant raised no objection at trial, we employ the substantial risk of a miscarriage of justice standard of review. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). We discern no such risk.
The comment was an innocuous introductory remark, followed by accurate and emphatic instructions conveying that the jury must find the defendant not guilty unless and until the Commonwealth has satisfied its burden of proving guilt beyond a reasonable doubt. Furthermore, at the close of trial, the judge again gave correct and firm instructions on the Commonwealth's burden of proof and the presumption of innocence. There was neither error nor prejudice, and, hence, no substantial risk of a miscarriage of justice.
The judge proceeded to explain, among other things, that indictments are not evidence and cannot be considered as such, that the Commonwealth had the burden to prove each element of its case against the defendant beyond a reasonable doubt, and that the defendant had the benefit of the presumption of innocence, which she defined as "a rule of law that compels [the jury] to find the defendant not guilty unless and until the Commonwealth produces evidence from whatever source that proves that he is guilty beyond a reasonable doubt." She also explained the functions of the judge, the attorneys, and the jury -- a topic on which her introductory comment was particularly appropriate.
b. Sufficiency of the evidence. The defendant argues that the Commonwealth failed to adduce sufficient evidence that he was unlawfully carrying a firearm, because it presented no evidence that he lacked the necessary license. However, pursuant to the statutory presumption of lack of authority set forth in G. L. c. 278, § 7, having a license to carry a firearm is an affirmative defense for which the defendant has the burden of production. The defendant's argument that the presumption violates due process and conflicts with the Second Amendment to the United States Constitution is foreclosed by established precedent. The identical claims have been rejected by both the Supreme Judicial Court and the United States Court of Appeals for the First Circuit. See Commonwealth v. Gouse, 461 Mass. 787, 799-808 (2012); Powell v. Tompkins, 783 F.3d 332, 337-343, 345-348 (1st Cir. 2015), cert. denied, 577 U.S. ___ (March 21, 2016).
By the same token, there is no merit to the defendant's argument that the judge should not have instructed the jury that "license is not an issue in this case."
2. Motion to suppress. Prior to trial, the defendant filed a motion to suppress evidence solely on the grounds that he was seized without reasonable suspicion and arrested without probable cause. After hearing, the motion was denied. With one exception noted below, the defendant challenges none of the judge's subsidiary findings, which essentially track the testimony of the only witness at the suppression hearing, Officer Marrero. They may be summarized as follows:
We review under familiar standards. "In reviewing a denial of 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. Washington, 449 Mass. 476, 480 (2007).
At about 2:00 A.M. on May 1, 2009, Marrero heard what he believed to be gunshots, headed toward the sound, and saw a crowd running in one direction and the defendant running in the other direction. Marrero noticed that the defendant had his right hand near his waist area, as the other hand was pumping back and forth. Based on his training and experience, Marrero believed that the defendant was running with a firearm concealed in his waistband. The defendant jumped into the passenger seat of a Ford Expedition (SUV) that was waiting for him in the middle of the street. Believing that the defendant had been involved in the shooting, Marrero activated his cruiser's lights and siren with the intention of stopping the other vehicle. The vehicle led Marrero on a chase, eventually slowed, and the passenger's side door opened. No one got out at first. Then, after the vehicle jumped the curb to get around traffic, the defendant exited the SUV and took off on foot. Two other officers, who had come to assist Marrero, caught the defendant and had him on the ground by the time Marrero arrived. There was a brief struggle when the defendant refused to cooperate in being handcuffed. The driver of the SUV also was placed in custody.
A police canine unit arrived at the scene. The dog, trained in ballistics and firearm detection, indicated based on scent that a firearm was inside the SUV. A search warrant was obtained, the motor vehicle was searched, and a firearm was recovered from the back seat of the vehicle.
The motion judge found that "[t]he dog . . . sniffed the motor vehicle and indicated that a firearm was inside." To the extent this finding means that, prior to the execution of the search warrant, the dog sniffed only the exterior of the vehicle, the finding is not supported by the evidence. Even if the vehicle search had been at issue at the hearing, the testimony on this point was simply too vague to determine whether or not the dog's prewarrant activity included the vehicle's interior. See note 5, infra, and accompanying text.
Based upon these subsidiary findings, the motion judge determined that Marrero had reasonable suspicion to stop the defendant before the car chase began, in view of the following: the hour when the events occurred; the sound of shots fired; the defendant's proximity to the scene from where the sound came; the defendant's flight in the opposite direction from the crowd running from Packy Connor's bar; and the manner in which the defendant ran, which Marrero reasonably could infer showed that he was concealing a firearm. The motion judge further concluded that after Marrero activated his lights and siren, reasonable suspicion ripened into probable cause to believe that the defendant had engaged in illegal firearms activity, based upon the extreme measures taken by him and the driver of the vehicle to evade the police.
The defendant posits on appeal that while there may have been reasonable suspicion to stop the SUV, and the further flight of the vehicle may have given rise to probable cause to arrest the driver for failing to submit to the stop, there was no basis to place the defendant under arrest for anything relating to the shooting or the firearm that later was recovered. However, contrary to the defendant's position, it was not necessary for Marrero to have seen an actual firearm in the possession of the defendant in order to have reasonable suspicion -- and later, probable cause -- that he was involved in the shooting. The observations by the experienced police officer of the defendant as he fled from the scene of the shooting sufficed to establish reasonable suspicion, and the defendant's subsequent behavior when the officer attempted to effectuate an investigatory stop sufficed to support probable cause to arrest. The motion judge did not err in denying the motion to suppress.
3. Motion for a new trial. The defendant's motion for a new trial is predicated on alleged ineffective assistance of counsel in failing to use the pretrial motion to suppress to challenge what he claims was an unjustified warrantless search of the vehicle. As the defendant correctly points out on appeal, the motion to suppress was limited to the question whether the police lacked probable cause to believe that the defendant had been involved in the shooting; it did not challenge the propriety of the search of the vehicle. According to the defendant, this failure deprived him of a substantial avenue of defense.
The judge who decided the motion for a new trial rejected the defendant's argument without holding an evidentiary hearing, on the ground that the search only took place after police had obtained a warrant based upon an alert by a police canine that had sniffed the exterior of the vehicle. The judge reasoned that because an exterior dog sniff has been held not to be a search, see Commonwealth v. Feyenord, 445 Mass. 72, 82-83 (2005), no search took place until the warrant had been obtained, and counsel's failure to make a baseless claim of an unjustified warrantless search was not ineffective.
The defendant argues that the details of the use of the canine were not explored at the hearing on the motion to suppress, and that the police report and search warrant materials (which were made available to counsel prior to the hearing on the motion to suppress) show that the dog was placed inside the rear passenger area of the vehicle, where it moved items around with its nose and uncovered the butt end of the firearm. Likewise, the testimony at trial was to the effect that there was an interior dog sniff. Thus, in the defendant's view, an unjustified warrantless search took place before the warrant was sought.
Marrero merely testified that the canine had done "some sort of a sniff test . . . [that] had a positive result on the vehicle," and that as a result a "search warrant was conducted [sic]."
The Commonwealth, for its part, argues that pursuing this issue would have been futile; if defense counsel had raised an issue of the propriety of the search of the vehicle, the Commonwealth would have relied on the doctrine of inevitable discovery, because the driver of the vehicle, as well as the defendant, were placed under arrest, and the vehicle would have been impounded and its contents inventoried.
The Commonwealth did not argue in its opposition to the new trial motion below, and only obliquely suggests in its brief on appeal, that the search was also justifiable under the automobile exception to the warrant requirement. We therefore do not address the issue.
We are unable to resolve these contentions on the record before us, and conclude that the proper course is to remand to the trial court for further proceedings at which the defendant may endeavor to support his claim that the use of the canine was an unjustified warrantless search, and the Commonwealth may respond, e.g., by producing proof at an evidentiary hearing in support of its inevitable discovery contention. See Commonwealth v. Ubilez, 88 Mass. App. Ct. 814, 817-820 (2016).
Judgment affirmed.
The order denying the defendant's motion for a new trial is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 24, 2016.