Opinion
No. 15–P–458.
06-24-2016
COMMONWEALTH v. Martin CARR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2010, a District Court jury convicted the defendant of possession of a Class B substance (cocaine) with intent to distribute, a related school zone violation, and providing a false name following arrest. On appeal, the defendant challenges the denial of his motion to suppress the cocaine, as well as the sufficiency of the Commonwealth's evidence at trial regarding the false name conviction. We affirm.
The defendant also seeks to have the act that amended the school zone statute to make it more lenient applied retroactively to him. He recognizes that doing so would require the Supreme Judicial Court to revise its holding in Commonwealth v. Thompson, 470 Mass. 1008 (2014). Such arguments are properly posed only to that court.
Motion to suppress. It is undisputed that the police discovered the cocaine after the defendant was ordered to exit a vehicle in which he had been a passenger. He does not challenge the validity of the police's stopping of the vehicle, which they had reason to believe had been stolen. Nevertheless, he argues that the exit order was unjustified and that the cocaine should be suppressed because it resulted from his leaving the vehicle.
An evidentiary hearing on the motion to suppress was held in 2006, and a recording of that hearing no longer exists, because—as the parties agree—it “was destroyed in accordance with routine court administrative practice prior to the November, 2010, trial in this matter.” To recreate the record, the parties entered into a stipulation in which they agreed that they “know of no reason to believe that the substance of the unpreserved motion testimony differed substantially from other materials of record reporting pertinent events at the time of the arrest, including the arrest report and the trial testimony of [the two arresting officers].” Our independent review of the District Court docket reveals that the parties presented the stipulation as a motion to recreate the record. The motion was allowed with a margin note on the stipulation that “The court finds—by agreement of the parties—that this filing represents the reconstructed record.” The parties also stipulated to the authenticity of contemporaneous notes that the prosecutor had made regarding the testimony of the sole witness at the motion to suppress hearing (one of the arresting officers). In any event, the relevant facts are largely undisputed.
After the defendant exited the vehicle, he dropped the bag of cocaine on the ground and unsuccessfully attempted to conceal it with his foot or to kick it away.
As the Supreme Judicial Court repeatedly has highlighted, in light of the potential dangers facing police during traffic stops, “it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns.” Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). It is undisputed that the defendant could not be seen when the officer first on the scene stopped the vehicle, but that the officer then saw his head “pop up” into view and then duck down again. We agree with the Commonwealth that such furtive behavior justified the exit order, especially when viewed in the context of the stopping of a car that the police had reason to believe was stolen. See, e.g., Commonwealth v. Torres, 433 Mass. 669, 674 (2001) (observation of passengers “ ‘bent over’ and ‘messing with something’ “ indicated “they might be concealing or retrieving a weapon”) (quoting testimony from the suppression hearing). We also observe that, as the judge noted in her annotations denying the motion to suppress, there had been a recent shooting in the area, something that provided additional support for concern for the officers' safety (and hence the exit order).
In denying the motion to suppress, the judge annotated the motion with the following statements:
“officer's activity was sufficient
movement of front seat passenger in what police believed was stolen car gave lawful legal basis
necessary due to recent shooting[.]”
No additional written findings and rulings exist. The prosecutor's affidavit submitted as part of the effort to recreate the record strongly suggests that the judge explained her ruling from the bench, but—as noted—a recording of any oral findings and rulings no longer exists.
In his brief, the defendant challenges that finding as clearly erroneous. However, he simultaneously disavowed any argument that this finding “lacked record support,” and, in any event, he has not provided a basis for concluding that the finding is clearly erroneous. The fact that the shooting was not mentioned in the contemporaneous police report was a point in the defendant's favor to be argued to the fact finder, but it hardly determinatively establishes that the finding was clearly erroneous. The absence of trial testimony regarding the shooting has no appreciable value, given that the shooting would not bear on the defendant's guilt or innocence for the crimes charged (and therefore one would not expect such evidence to have been introduced at the trial).
Sufficiency. The defendant acknowledges that there was ample evidence that he provided the police a false name at the scene of his arrest. He challenges the sufficiency of the evidence with respect only to the timing of the false statement. The applicable statute, G.L. c. 268, § 34A, makes it illegal to give police a false name “following an arrest.” At one point in his testimony, Officer Rijos, the first officer on the scene, stated that the defendant was asked for his name (and falsely responded) “when he was placed in custody.” As the defendant highlights, at another point Officer Rijos testified with greater specificity that the conversation occurred “prior to [the defendant's] being placed under arrest.” However, he also testified that “when [the defendant] was placed in handcuffs he still maintained his name was [the false name he had given].” That testimony supports a reasonable inference that the defendant actively continued to provide the police a false name following his arrest. The evidence that the defendant violated G.L. c. 268, § 34A, thus was sufficient. See generally, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (in reviewing the sufficiency of the evidence, we take all reasonable inferences in a light favorable to the Commonwealth).
Officer Rijos also testified that the defendant was arrested under the false name.
At oral argument, the Commonwealth contended that where a defendant provides police with a false name prior to an arrest, he has an affirmative duty to correct this information following the arrest. We do not rely on this theory.
Judgments affirmed.