Opinion
No. 11–P–1480.
2013-06-6
COMMONWEALTH v. Hakeem A. COLEMAN.
By the Court (MEADE, SIKORA & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of a three-day trial, a Boston Municipal Court jury convicted the defendant of carrying a firearm without a license, G.L. c. 269, § 10( a ); possession of a loaded firearm without a license, G.L. c. 269, § 10( n ); and operating a motor vehicle after suspension of license, G.L. c. 90, § 23.
The issues in this appeal arise from a motor vehicle stop during which the arresting police officers impounded the vehicle driven by the defendant, conducted an inventory search, and discovered a loaded handgun in the glove compartment. For the following reasons, we affirm.
The jury also found the defendant responsible for two civil infractions relating to the operation of a motor vehicle.
Background. 1. Trial testimony. At trial, the jury heard the following testimony. On September 18, 2009, at approximately 1:00 A. M., Boston police officers Dunford and Lyons conducted a stop of the defendant's automobile because its left tail light and right brake light were not working. During the stop, the defendant admitted that his license was suspended. The officers confirmed the suspension through their mobile computer. They also discovered that he had an outstanding arrest warrant for missing jury duty. They placed him in custody, but did not handcuff him. Officer Lyons then began to perform a motor vehicle inventory. At that point the defendant appeared “a little nervous,” and he asked Officer Dunford whether his partner was searching for something. Officer Dunford also noticed that the defendant's hand was “shaking a little.” After Officer Lyons returned to the car, he placed the defendant in handcuffs because he had discovered a loaded handgun in the unlocked glove compartment. The defendant admitted that he did not have a license to carry a firearm.
At trial, Melinda Johnson testified that she was the defendant's fiancée and that she owned the vehicle. On the night of the arrest, she had lent the defendant her car at approximately 6:00 P .M. The day before, Johnson had removed some personal items from the glove compartment; it had not contained a firearm at that time. Johnson did not own a firearm.
The defendant also testified to the following information. On the night of his arrest, he had borrowed Johnson's car to attend a charity event at a bar. Sometime after midnight, he left the event and drove two other attendees, nicknamed Ty and Cheese, to a housing development. However, before the defendant drove away, he left Ty and Cheese alone in the car for “one or two minutes.” The officers stopped the defendant on his way back to Johnson's house.
2. Motion to suppress. Pretrial, the defendant moved to suppress the evidence of the firearm. The motion judge heard the following information.
The area of the stop had recently become a high-crime area. The stop occurred in front of a school, a location at which Officer Dunford had never observed cars parked. As soon as the officers learned of the suspension of the defendant's license, of an outstanding arrest warrant, and therefore of his ineligibility to drive the car, they began an inventory search of the vehicle in preparation for its tow and impoundment. In their view, the governing department rule called for impoundment if the “vehicle is being driven by a person who either doesn't have a license or whose license has been suspended” and if the circumstances exposed the unattended vehicle to the risk of vandalism. They regarded the nearby residence of Johnson as the registered owner (of which Officer Dunford was chargeably aware from his consultation of the cruiser's mobile computer information) to be irrelevant.
Approximately twenty minutes after the officers called for the tow truck, and while the car was still at the scene, Johnson arrived. The officers proceeded with the tow.
The Commonwealth also introduced the Boston police department's motor vehicle inventory search policy. According to the policy, since the defendant did not have a license, the officers had the option to tow the vehicle. Further, after a decision to impound, the policy required the performance of a motor vehicle inventory. The motion judge denied the defendant's motion.
Analysis. 1. Motion to suppress. When we review a judge's decision to suppress evidence, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Eddington, 459 Mass. 102, 104 (2011), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Warrantless inventory searches serve three interests: “the protection of the vehicle and its contents; the protection of the police and the tow company from false charges; and the protection of the public from the dangerous items which might be in the vehicle.” Commonwealth v. Eddington, supra at 108–109, quoting from Commonwealth v. Garcia, 409 Mass. 675, 682 (1991). Our determinations of the propriety of a vehicle impoundment are principally fact driven, “with the overriding concern being the guiding touchstone of [r]easonableness.” Commonwealth v. Eddington, supra at 108, quoting from Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000).
Here, several objective criteria supported the officers' decision to impound the vehicle: (a) the high-crime area of its location; (b) the threat of vandalism if left for retrieval by Johnson; (c) the early-morning hour heightening the risk of theft or vandalism and reducing the likelihood of a quick arrival by Johnson; (d) the protection of the police from false claims of theft; and (e) the detention of the officers from their patrol duties until the uncertain time of Johnson's arrival. See Commonwealth v. Ellerbe, supra at 776 (“Reasonableness did not require police officers to guard the vehicle or to wait with the unlicensed passenger until a licensed driver [arrived]”); Commonwealth v. Eddington, 459 Mass. at 109 (“police were not constitutionally obligated to contact [the owner]”); Commonwealth v. Henley, 63 Mass.App.Ct. 1, 5 (2005) (police may impound when no lawful driver is present and able to remove the vehicle).
One circumstance weighed in favor of notification and delay of the impoundment. Johnson lived within a few blocks. As a result, it would have been reasonable for the officers to wait for Johnson, or at least to attempt to contact her. In accordance with department policy, they exercised the option to impound. See Commonwealth v. Eddington, 459 Mass. at 110–111. Since they chose between two permissible alternatives, their decision fell within the range of reasonableness established by the case law. See id. at 109–111.
The scope of the impoundment search was constitutionally valid. See South Dakota v. Opperman, 428 U.S. 364, 366, 376 (1976) (concluding that an inventory search pursuant to police procedure that led police to find narcotics in the glove compartment was not “unreasonable” under the Fourth Amendment to the United States Constitution); Commonwealth v. Caceres, 413 Mass. 749, 755 (1992) (“unlocked closed container may be searched pursuant to specific written police inventory procedures without violating art. 14” of the Massachusetts Declaration of Rights).
2. Evidence of constructive possession. The defendant claims that the Commonwealth failed to introduce sufficient evidence to prove that he constructively possessed the firearm. In constructive possession cases, a defendant's presence alone is not enough to show knowledge or the ability and intention to exercise control over the firearm. Commonwealth v. Romero, 464 Mass. 648, 653 (2013). However, “presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ “ Ibid., quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977).
Here, sufficient evidence supplemented the evidence of the defendant's presence and established his constructive possession of the handgun. The defendant was the sole occupant of the vehicle, and he appeared nervous when Officer Lyons was searching the car. Johnson testified that the handgun had not been in the glove compartment on the day before. Finally, the jury were free to discount as implausible the defendant's theory that Ty or Cheese must have left the handgun in the glove compartment. See Commonwealth v. O'Laughlin, 446 Mass. 188, 203–204 (2006), citing Commonwealth v. Walker, 401 Mass. 338, 343–344 (1987) (jury were free to disbelieve the defendant's version, which contradicted the Commonwealth's evidence). As a result, viewed in the light most favorable to the Commonwealth, the evidence was sufficient to support the jury's inference of constructive possession. Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979).
3. Inconsistent verdicts. The defendant contends that the verdict of not guilty on the charge of possession of ammunition is inconsistent with the verdict of guilty on the charge of possession of a loaded firearm. However, the law permits factually inconsistent verdicts where an acquittal on one charge is factually inconsistent with a guilty verdict on another so long as the verdict of guilt rests upon proof beyond a reasonable doubt. See Commonwealth v. Nascimento, 421 Mass. 677, 684 (1996); Commonwealth v. Sylvia, 456 Mass. 182, 196 (2010); Commonwealth v. Charles, 463 Mass. 1008 (2012) (verdict acquitting defendant of possession of ammunition did not preclude verdict of guilty of possession of loaded firearm); Commonwealth v.. Elliffe, 47 Mass.App.Ct. 580, 584 (1999). The acceptance of factually inconsistent verdicts recognizes the jury's power to acquit defendants out of compassion. Commonwealth v. Hamilton, 411 Mass. 313, 324 (1991). In the present case, the proof of guilt was sufficient.
As the Commonwealth suggests, the jury could have believed that the conviction of possession of a loaded firearm subsumed a conviction for possession of ammunition. As a result, the jurors may have regarded it as unnecessary to convict the defendant on both charges. See Commonwealth v. Charles, 463 Mass. at 1009 (verdict acquitting defendant of possession of ammunition did not preclude verdict of guilty of possession of loaded firearm).
4. Second Amendment contentions. Finally the defendant argues that his firearm convictions violate his right under the Second Amendment to the United States Constitution to possess a firearm, as confirmed by the decisions of District of Columbia v. Heller, 554 U.S. 570, 626–627 (2008) ( Heller ), and McDonald v. Chicago, 130 S.Ct. 3020, 3050 (2010) ( McDonald ). In Commonwealth v. Powell, 459 Mass. 572, 584–589 (2011), cert. denied, 132 S.Ct. 1739 (2012), the Supreme Judicial Court with ample textual support interpreted the Heller and McDonald decisions to guarantee the right to possess firearms in one's home for the purpose of self-protection, but not to prohibit legislation reasonably regulating possession and use of firearms as an exercise of the police power to serve the public health, safety, and welfare. No recognized Second Amendment right currently permits an individual to drive the streets with an unlicensed loaded firearm.
Since the Heller and McDonald guarantees do not extend to handguns carried abroad, they do not alter the established Massachusetts decisional law “that in prosecutions [for unlicensed possession of a firearm] the Commonwealth does not need to present evidence to show that the defendant did not have a license or an FID card because the burden is on the defendant ... to come forward with such evidence” as an affirmative defense.
Commonwealth v. Powell, 459 Mass. at 582, citing Commonwealth v. Colon, 449 Mass. 207, 225–226 (2007), and Commonwealth v. Jones, 372 Mass. 403, 406 (1977). See Commonwealth v. Jones, 83 Mass.App.Ct. 296, 301–302 (2013). In the present case, the Commonwealth did not bear the burden of proving the defendant's lack of licensure as a prima facie element of the offenses.
This allocation accords with the provision of G.L. c. 278, § 7, that a “defendant in a criminal prosecution, relying for his justification upon a license, ... shall prove the same; and until so proved, the presumption shall be that he is not so authorized.”
Judgments affirmed.