Opinion
10-P-582
11-04-2011
COMMONWEALTH v. SHAWQUAN JACKSON.
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
Following a jury trial, the defendant was convicted of possession of a firearm without a firearm identification card, carrying a loaded firearm, and carrying a firearm without a license. The defendant appeals, arguing that his convictions violate his right to bear arms under the Second Amendment to the United States Constitution and that the judge erred in denying his motion to suppress, erred in admitting thermal imaging evidence, and erred in refusing to grant his motion to recuse. We affirm.
Treating the issues in order, the defendant never applied for a firearms permit, so he cannot raise his substantive Second Amendment claim now. See Commonwealth v. Powell, 459 Mass. 572, 584-586 (2011); Commonwealth v. Wallace, 460 Mass. 118, 122-123 (2011); Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011).
Second, the motion judge properly denied the defendant's motion to suppress, which he bases on a claim that police did not have reasonable suspicion that he was committing a crime when they stopped him. We review motions to suppress de novo, accepting the lower court's findings of fact absent clear error, but independently reviewing conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
By the time they stopped him, the police certainly had a reasonable suspicion that the defendant was carrying a firearm, and he makes no claim to the contrary. Instead, he argues that their suspicion was based on an unconstitutional premise, i.e., that the defendant was too young to meet the statutory age requirement to carry a firearm. See G. L. c. 140, § 131(d) (iv) (person under age of twenty-one cannot file application for license to carry firearm). The age limitation, the defendant argues, violates his Second Amendment rights and, accordingly, the police had no right to use that limitation as a basis for forming a reasonable suspicion of criminal activity.
A police officer trained in the mannerisms of those who carry guns first spotted the defendant as he restlessly stood with four other young males on a street corner in an urban area burdened by guns and gangs. Based on the way the defendant was holding what appeared to be the weighted pocket of his jacket, the officer believed he had a gun. He notified other officers, who promptly arrived. Upon seeing the officers, the defendant instantly took flight. As he ran, 'his left hand was across his body holding his right side at the waist and his right hand was also at the same place on his waist,' further strengthening the officers' belief that he had a weapon. Then, as the pursuit continued, the officers saw the defendant 'making a pumping action with his right hand as if he were trying to pull something from his waist area.' At that point, the officers lost sight of him for about four seconds, after which they saw him 'running hard with both arms pumping . . . hands . . . no longer at his waist' as he jumped fences trying to make good his escape. The motion judge found that the defendant was seized 'when [the officer] handcuffed [the defendant] at the end of the pursuit when [he] was on the ground.' The defendant does not challenge that finding here. By that time, the totality of the circumstances clearly amounted to reasonable suspicion that the defendant had been armed. See, e.g., Commonwealth v. Franklin, 456 Mass. 818, 823 (2010) (when defendant ran holding his hand to his waist, officers concluded he had 'contraband, probably a weapon, tucked into his waistband'; fact of concealment and throwing object over a fence give rise to reasonable suspicion).
Wallace and Powell preclude the defendant's right to base his suppression claim on the alleged unconstitutionality of G. L. c. 140, § 131.
Not surprisingly, the defendant cites no authority for his position, which ultimately would require police officers to make street corner judgments about the undecided constitutionality of the laws they are charged with enforcing each time they elect to detain a suspected violator. Neither the Fourth Amendment nor the exclusionary rule was designed to flood the streets with armed constitutional scholars. Instead, police are authorized to stop when they 'have a reasonable, articulable suspicion that a person . . . has committed, is committing, or is about to commit a crime.' Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 616 (2011). This stop, though it occurred after the Supreme Court of the United States issued its decision in District of Columbia v. Heller, 554 U.S. 570 (2008), came more than a year before its decision in McDonald v. Chicago, 130 S. Ct. 3020 (2010), where, overruling more than 125 years of settled precedent, the Court held for the first time that the Second Amendment applies to the States. Until that time, the Second Amendment had no impact on Massachusetts statutes, see Commonwealth v. Loadholt, supra at 724, and the police were entirely warranted in using G. L. c. 140, § 131, whatever its constitutional validity may turn out to be, as a basis for forming a reasonable suspicion that the defendant was committing a crime.
Third, the trial judge erred in admitting the thermal imaging evidence because there was no foundation for its accuracy. See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 327 (2009). As defense counsel made no objection to introduction of the evidence, the question is whether its admission created
The defendant had moved in limine for a voir dire of the officer who presented the thermal imaging evidence to determine his knowledge of the manner in which the device operated and its proper calibration. The motion was denied, and the evidence was admitted without objection. Defense counsel then thoroughly and effectively cross-examined the officer regarding what he did and did not know about the way the device operated. There was never a request for a preliminary ruling as to the scientific reliability of the device itself. See Commonwealth v. Sparks, 433 Mass. 654, 659-660 (2001).
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a substantial risk of a miscarriage of justice. It did not. The evidence was brief, its deficiencies were thoroughly demonstrated on cross-examination, the prosecutor mentioned it only briefly in summation, conceding as he did that 'the science doesn't tell you much here,' Tr. II/84, and the nexus between the defendant and the weapon was circumstantially established by other significant evidence. In all, we are satisfied that the minor use of the evidence at trial and the other evidence presented to the jury ensured that the error did not materially influence the guilty verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Finally, the trial judge did not abuse her discretion when she denied the defendant's motion that she recuse herself from presiding at the jury trial because she had heard and denied his motion to suppress. The decision to recuse lies within a judge's sound discretion, Commonwealth v. Daye, 435 Mass. 463, 469 (2001), and is only required where a defendant demonstrates 'bias or prejudice arising from an extrajudicial source.' Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). Indeed, in Adkinson, which the defendant did not cite in his brief, the Supreme Judicial Court held that the trial judge was not required to recuse herself from a jury-waived trial after hearing the defendant's motion to suppress in the same case. Here, as noted, the trial took place before a jury.
Judgments affirmed.
By the Court (McHugh, Smith & Carhart, JJ.),