Opinion
09-P-2270
02-21-2012
COMMONWEALTH v. BRENDAN L. HESLIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a consolidated appeal from convictions of armed assault in a dwelling, armed home invasion, assault by means of a dangerous weapon, and unlawful possession of a rifle and shotgun, and from the partial denial of the defendant's motion for a new trial. The defendant argues that (1) the judge erred in denying his motion to suppress, (2) the conviction of armed assault in a dwelling must be reversed, (3) the evidence was insufficient to sustain the rifle and shotgun convictions, and (4) his trial counsel rendered ineffective assistance of counsel in numerous respects. We affirm.
The judge allowed the defendant's new trial motion on convictions of drug trafficking and unlawful possession of a .25 caliber handgun. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Those convictions are not before us except insofar as the defendant challenges the seizure of the drugs pertaining to the trafficking indictment.
1. The motion to suppress. The motion judge's clear and detailed factual findings, which are amply supported by the evidence, establish that the initial police entry into the Heslin residence at 126 Summer Street in Plymouth was lawful on two separate bases, and that plain view observations made during a subsequent protective sweep provided probable cause for the search warrant that followed. We also agree substantially with the judge's thoughtful analysis.
The defendant freely and voluntarily consented to the initial entry into his home and the retrieval of the knife from his bedroom. See Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). Even had the defendant not consented, probable cause and exigent circumstances supported the initial warrantless entry into the residence to prevent the destruction of evidence of the crime that had just occurred at the DiBeneditto home in Pembroke, and to prevent the defendant's escape or harm to the police or others. See Commonwealth v. Forde, 367 Mass. 798, 800 (1975); Commonwealth v. Donoghue, 23 Mass. App. Ct. 103, 108 & n.2 (1986).
The police arrived at the Heslin residence in the immediate aftermath of a crime of significant violence. The defendant had entered the DiBeneditto residence, assaulted an occupant with a loaded firearm, brandished a knife as he fled, and threatened to return with shotguns. In the driveway of the Heslin residence, the police observed a vehicle matching the description of that used by the assailant; an individual matching the assailant's description was visible in the kitchen; and the police knew that a person named John Heslin, who resided there, had a firearm history. The circumstances confronting the police were exigent, and pausing to obtain a search warrant prior to entry was impracticable. See Commonwealth v. Donoghue, supra at 108. Compare Commonwealth v. Forde, supra at 801; Commonwealth v. Tyree, 455 Mass. 676, 690- 691 (2010). Indeed, the police acted reasonably and with restraint throughout.
The circumstances also sufficed for Officer Lincoln to conduct an initial protective sweep of the dwelling. See Commonwealth v. Matos, 78 Mass. App. Ct. 156, 159 (2010). During that sweep, Officer Lincoln made plain view observations that properly were included in the ensuing search warrant application. See id. at 159-160. Even discounting Detective Butler's observations in the second sweep, as the motion judge correctly did, probable cause existed to support issuance of the warrant.
The circumstances also justified the actions taken to secure the premises from without and to bar Janet Heslin from entering unescorted until the search warrant was obtained and executed. See Commonwealth v. DeJesus, 439 Mass. 616, 621 (2003).
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2. The alleged inconsistency in verdicts. The jury's determination that the defendant had the intent to commit the felony of assault and battery by means of a dangerous weapon at the time he entered the DiBeneditto residence is not inconsistent with its verdict that the defendant did not succeed in committing an assault and battery by means of a dangerous weapon once he entered. See Commonwealth v. Lowe, 21 Mass. App. Ct. 934, 935 (1985). Upon the evidence before it, the jury were warranted in concluding that the defendant racked the gun and pointed it at John DiBeneditto's chest but that DiBeneditto tackled the defendant before the gun could be fired and the gun then fell on DiBeneditto's head during the ensuing struggle. See ibid.
3. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the evidence sufficed to establish that the rifle and the shotgun were operable. See Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). Detective Charles Warnock, a certified instructor and firearms expert, test fired the shotgun. He only dry fired the rifle because no ammunition was readily available. Nevertheless, he examined it, observed that it was clean and well lubricated, dry fired it several times, heard the firing pin hit, and observed no apparent defects in the rifle that would render it inoperable.
We reject the claim that the evidence was insufficient because the Commonwealth failed to establish that the defendant was not licensed. Proof that the defendant lacked a license is not an element of the offense. See Commonwealth v. Powell, 459 Mass. 572, 582 (2011)(statutory burden on defendant to come forward with evidence of license is not unconstitutional). See also Commonwealth v. Loadholt, 460 Mass. 723, 725-727 (2011) (nothing in McDonald v. Chicago, 130 S. Ct. 3020 [2010], and District of Columbia v. Heller, 554 U.S. 570 [2008], has altered or abrogated the state of the law concerning the statutory presumption set forth in G. L. c. 278, § 7).
The defendant's Second Amendment challenge to the constitutionality of the statute rendering unlicensed possession criminal is also controlled by Commonwealth v. Powell, supra at 589-590. The defendant's failure to apply for a license or firearm identification (FID) card is fatal to his claim that G. L. c. 269, § 10(h)(1), is unconstitutional and that his firearm convictions must be reversed. See ibid. See also Commonwealth v. Loadholt, supra.
4. Ineffective assistance of counsel. We have not overlooked the defendant's claims of ineffective assistance of counsel in failing to move to dismiss, failing to request an instruction on joinder, and failing to object to certain evidence and arguments by the prosecutor. We have considered these arguments and conclude that they lack merit essentially for the reasons stated by the motion judge, who was also the trial judge. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
Order partially denying motion for new trial affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),