Opinion
No. 15–P–600.
09-29-2016
COMMONWEALTH v. Constantino GIANNARIKAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Constantino Giannarikas, was convicted of unlawful possession of both a firearm and ammunition. On appeal, he claims that one of the indictments was fatally defective, that the judge erred in failing to allow the defendant's motion to suppress, and that the evidence was insufficient to prove constructive possession of the firearm and ammunition. We affirm.
1. Defective indictment. Prior to trial, the defendant moved to dismiss the indictment charging unlawful possession of a firearm as defective because it is unsigned by the presiding juror of the grand jury, the district attorney, and the clerk of the court. The judge denied the motion, observing that the indictment in question is a two-page document, with the first containing the charge of unlawful possession of a firearm, and the second a sentencing enhancement for being a repeat offender, with the proper signatures appearing at the bottom of the second page. We agree that no dismissal was required here where it was apparent, based on their contents and appearance, that the two pages formed one single, signed indictment. See Commonwealth v. Fernandes, 430 Mass. 517, 520–521 (1999) (“[T]he counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentence enhancement provision”). Moreover, the defendant does not argue that he was unable to understand the charge or prepare his defense based on the contents of the indictment charging unlawful possession of a firearm.
The sentencing enhancement portion of the indictment was dismissed for lack of particularity.
2. Motion to suppress. “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). We defer to the motion judge's “assessment of the credibility and weight of testimony.” Commonwealth v. Ramos, 72 Mass.App.Ct. 773, 777 (2008).
“After an evidentiary hearing, the motion judge, who was not the trial judge, made the following relevant findings of fact, which we supplement where necessary with evidence in the record that is uncontroverted and that was implicitly credited by the motion judge....” Commonwealth v. Melo, 472 Mass. 278, 285–286 (2015). In late July, 2013, the Brookline police department investigated a report of an automobile driver, later identified as the defendant, pointing a firearm at the occupants of a second vehicle. Based on that report, on August 1, 2013, the Brookline police department obtained a warrant to arrest the defendant for assault by means of a dangerous weapon. Later that morning, Brookline police, along with the Boston police department fugitive unit, located the defendant after surveilling multiple locations. Eventually, the police followed him in his vehicle to 81 Corey Street in West Roxbury. There, after confirming with two neighbors that the defendant was residing in the second-floor apartment, the police knocked, entered the apartment, and arrested the defendant.
One of the occupants of the second vehicle identified the defendant from a photographic array.
Immediately following the arrest, police officers performed a protective sweep of the apartment for the officers' safety. At the time of the arrest, the police officers knew the defendant had been charged with a violent crime involving a firearm and had a significant criminal record which included crimes of violence. In executing the sweep, Boston police Officer Donald Wightman saw, in plain view, a marijuana “grow” operation. Immediately thereafter, the police froze the apartment and sought a search warrant for the premises, which was issued out of the West Roxbury Division of the Boston Municipal Court Department later the same day. The warrant authorized the police to search for: marijuana; paraphernalia and ledgers related to its sale and distribution; money; and personal papers, keys, or effects showing control or occupancy of the apartment. As a result of the search, the police located a loaded firearm in a bedroom closet wrapped in a woman's shirt, ammunition, keys, and a passport and a Social Security card in the name of the defendant.
Wightman saw three marijuana plants with artificial lighting, and two digital scales and loose marijuana on a table.
The warrant return indicated that the firearm was found with one round chambered and a magazine containing seven more rounds.
On the same day, a search warrant issued out of the Brookline Division of the District Court Department authorizing a search of the 81 Corey Street premises for any and all firearms and ammunition in relation to the earlier report of an assault by means of a firearm.
It appears from the testimony at the motion hearing and the timeline of events that the Boston search warrant was executed prior to the Brookline search warrant.
The defendant first challenges the lawfulness of the protective sweep, which provided the basis for the Boston search warrant. “While executing an arrest warrant, police may conduct a protective sweep, ‘a quick and limited search of the premises' to protect the officers' safety, if they have a reasonable belief based on ‘specific and articulable facts' that the area could harbor a dangerous individual.” Commonwealth v. Matos, 78 Mass.App.Ct. 156, 159 (2010), quoting from Maryland v. Buie, 494 U.S. 325, 327, 334 (1990). Articulable facts may include the violent crime for which the defendant's arrest warrant issued. Commonwealth v. DeJesus, 70 Mass.App.Ct. 114, 120 (2007). We agree with the motion judge that “[i]t was reasonable for [the arresting officer] to believe based on the crime being investigated and the possible availability of a firearm in [the] defendant's apartment that officer safety might be at risk and that a protective sweep was prudent.” Compare Commonwealth v. Ware, 75 Mass.App.Ct. 220, 233 (2009) (reasonable to conduct protective sweep where police had not located firearm allegedly used by defendant).
The defendant also claims that the Brookline search warrant failed to establish a connection between the firearm sought and the 81 Corey Street residence. The defendant is correct that the information in an affidavit in support of a search warrant must adequately establish a nexus between the item sought and the location to be searched. See Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). We do not reach the merits of his claim, however, because he failed to raise the adequacy of the Brookline search warrant in either his motion or at the motion hearing. See Commonwealth v. Silva, 440 Mass. 772, 781–783 (2004). See also Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979). Indeed, the entire motion and hearing were focused on the Boston search warrant, with scant reference to even the existence of the second warrant. For this reason, review for a substantial risk of a miscarriage of justice is precluded. See Commonwealth v. Silva, supra (suppression issue waived with no further review where it was not raised in motion and was not subject of discussion at suppression hearing). Contrast Commonwealth v. Arzola, 470 Mass. 809, 814–815 (2015) (reviewing claim for substantial risk of miscarriage of justice despite waiver where record is “sufficient to resolve the defendant's claim”).
Notwithstanding the issue of waiver, there is no merit to the defendant's claim as to the Brookline search warrant.
3. Sufficiency of the evidence of constructive possession. The requisite linkage between the defendant and the seized firearm and ammunition was established by evidence of his residency at the premises and the proximity of the firearm and ammunition to the defendant's bedroom area and his personal effects. See Commonwealth v. Escalera, 462 Mass. 636, 649 (2012), and cases cited. The defendant's claims as to the woman's clothing in the closet and the presence of other occupants of the apartment are unavailing as the Commonwealth was not required to prove that the defendant had exclusive control over the items. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Moreover, any conflicting inferences that could be drawn from the evidence were for the jury to resolve. See Commonwealth v. Miranda, 458 Mass. 100, 113 (2010). The motions for required findings of not guilty were properly denied.
The firearm and ammunition were found in the closet attached to the apartment's sole occupied bedroom. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the evidence linking the defendant to the apartment, and the closet in particular, include the Social Security card found in the bedroom's dresser; the presence of male clothing items in the closet; the defendant's keys, passport, and iPhone found in the apartment's living room; and the defendant's admission that the marijuana growing in the apartment belonged to him.