Opinion
19-P-155
02-03-2020
COMMONWEALTH v. Abu JALLOH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant, Abu Jalloh, was convicted of assault and battery by means of a dangerous weapon and carrying a firearm without a license. The defendant filed a motion for new trial that was denied after a nonevidentiary hearing. In this consolidated appeal, the defendant claims he was denied the effective assistance of counsel, and that had his counsel filed a motion to suppress, the evidence would have been insufficient to convict him of the firearm offense. We affirm.
Prior to trial, the Commonwealth moved to dismiss two charges: improper storage of a firearm and possession of ammunition without a firearm identification card. He was found not guilty of threats to commit a crime.
Background. We summarize the trial evidence as follows. On December 18, 2012, A.J., the defendant's uncle, was at his home in Dorchester with other family members. The defendant, who did not live with A.J., was at the home eating lunch. As A.J. walked past the defendant, the defendant got up, followed A.J. to his bedroom door, put his arms around A.J.'s head and neck and started banging A.J.'s head against the wall and door while saying, "I will kill you." A.J.'s elderly mother-in-law, S.J., tried to free A.J. from the defendant's grasp. The defendant then grabbed S.J. and threw her on the couch. During the altercation, the defendant yelled "I will kill you" multiple times. A.J. called the police to report the attack. In the meantime, S.J. told the defendant to leave, pushing him out the back door as the defendant continued to scream "I'm going to kill you." After he was outside, the defendant asked to be allowed back in to retrieve his backpack, but neither A.J. nor S.J. would allow him to reenter the apartment. When the police arrived, they rang the doorbell, and that is when A.J. saw the defendant run from the scene.
Boston Police Officer Steven Horne arrived. A.J. told Horne that the defendant had a "bag in [his] daughter's room" and asked him to "please get it." A.J. asked Horne to take the backpack because he did not want the defendant to come back to his home anymore. When Horne picked up the backpack, he noticed that "it was weighted," and he could feel a gun. He opened the bag and saw the outline of a gun in a sock. The gun was secured and sent for testing that confirmed it was a working firearm with a four-inch barrel.
Following his convictions, the defendant filed a motion for new trial, supported by affidavits from trial and appellate counsel, but not from the defendant. See Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 203 (2004) (affidavit based on personal knowledge of facts relied on in support of motion required); Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004). The motion alleged that the defendant received the ineffective assistance of counsel for counsel's failure to file a motion to suppress. After a nonevidentiary hearing, the judge denied the motion and found that "defense counsel's conduct did not fall measurably below that which might be expected from an ordinary fallible lawyer" and that "a motion to suppress would have been meritless and therefore the defendant suffered no prejudice."
Discussion. The defendant contends that his trial attorney was ineffective because he failed to file a motion to suppress the firearm and the defendant was prejudiced as a result. He argues that his motion was viable because he had an expectation of privacy in the contents of the backpack, the backpack was not abandoned, and the police lacked probable cause to search the backpack. The Commonwealth counters that the defendant's motion and supporting affidavits failed to raise a substantial issue. Further, even if they did, the taking of the backpack at A.J.'s request -- after the defendant fled the scene -- and the discovery of the gun in the bag did not violate the defendant's expectation of privacy. We review a claim of the ineffective assistance of counsel under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We conclude that the defendant did not receive the ineffective assistance of counsel because his motion to suppress was not viable. We do so on different grounds than those argued by the Commonwealth or relied on by the judge. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
The Commonwealth argued that the defendant's motion was procedurally defective pursuant to Mass. R. Crim. P. 13 (a) (2), and that the taking of the backpack, at the request of the lawful occupant of the apartment, after the defendant fled the scene was constitutional because either the defendant abandoned the backpack or the defendant had a limited expectation of privacy because of his crimes and flight.
The search of the backpack was justifiable as a protective search. Cf. Commonwealth v. Wilson, 441 Mass. 390 (2004). When Horne seized the backpack at the homeowner's request, it was immediately apparent that the backpack contained a gun. At that point, Horne had a right and a duty to open the backpack before he put it in his police cruiser. Indeed, the defendant had a limited expectation of privacy, or at least a diminished expectation because he left the backpack behind at the scene of the crime and then fled from the police. Horne was permitted to conduct a reasonable search for weapons (and valuables) before he placed the backpack in the cruiser. "[U]nder the ‘plain feel’ doctrine, an officer may seize contraband discovered during a Terry-type frisk if the officer feels an object whose contour or mass makes its identity immediately known." Commonwealth v. Amado, 474 Mass. 147, 153 (2016). The immediately apparent standard does not require that the officer know with certainty what the object is; an object may be seized if the frisking officer has probable cause to believe in its incriminating character. Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 402 (2004). Indeed, police officers are "not required to gamble with their personal safety." Commonwealth v. Lopes, 455 Mass. 147, 160 (2009), quoting Commonwealth v. Robbins, 407 Mass. 147, 151-152 (1990). Because a motion to suppress was not viable, the defendant did not receive the ineffective assistance of counsel.
The defendant's challenge to the sufficiency of the evidence fails because sufficiency is analyzed on the basis of evidence admitted at trial, regardless of whether it was properly admitted. Commonwealth v. Villagran, 477 Mass. 711, 727 (2017).
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Judgments affirmed.
Order denying motion for new trial affirmed.