Opinion
14-P-1088
12-21-2015
COMMONWEALTH v. JEFF JEAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, by a jury in the Central Division of the Boston Municipal Court, of possession of a firearm without a license, and possession of a loaded weapon. He argues that his motion to suppress was erroneously denied and that the trial judge abused his discretion in allowing a police officer to testify to the characteristics of an armed gunman. We affirm.
Through a criminal complaint, the defendant was charged with possession of a firearm in violation of G. L. c. 269, § 10(a) (count 1), unlawful possession of ammunition in violation of G. L. c. 269, § 10(h) (count 2), violating G. L. c. 269, § 10(a), by virtue of a loaded weapon, in violation of G. L. c. 269, § 10(n) (count 3), receiving stolen property (count 4), and unlawful possession of a large capacity feeding device (count 5). Counts 4 and 5 were dismissed before trial and, after the defendant was convicted on the remaining counts, count 2 was dismissed as duplicative of count 3.
In his brief to this court, the defendant states that, before trial, count 1 was amended to allege a second violation of G. L. c. 269, § 10(h) (unlawful possession of a firearm). We see no support in the record for this proposition, other than what appears to be a photocopy of the criminal complaint with the word "carry" crossed out and replaced with "possession" in the title of the crime charged in count 1; § 10(a) also uses the word possession. The document bears the heading, "Trial Court of Massachusetts, Boston Municipal Court Department," but it does not bear the trial court seal. The criminal docket sheet, which does bear the seal, reflects in count 1 a charge of violating G. L. c. 269, § 10(a); so too does the "prosecutor copy" of the criminal complaint (which also bears the Trial Court seal). Neither the docket sheet nor the transcripts reflect the filing, arguing, or allowance of a motion to amend the complaint, which we find significant given that such an amendment would be "one of substance." Commonwealth v. Morse, 12 Mass. App. Ct. 426, 427 (1981).
Background. Because the defendant challenges the denial of his motion to suppress, we summarize the facts as found by the judge after an evidentiary hearing on that motion. On May 20, 2012, Boston police Officers Phillip Bissonnette and Daniel Smith were patrolling in Mattapan. At 10:39 P.M., the Boston police department's shot spotter system was activated in the area of 48 Groveland Street. Bissonnette and Smith were dispatched at 10:40 P.M., and arrived at 48 Groveland Street at 10:44 P.M. As the officers approached 48 Groveland in their cruiser, they observed two females and three males in the area. From their cruiser, Officer Smith asked the persons in the group if they had heard anything. They replied that they had not, and the officers continued up Groveland Street to speak with two other individuals they had observed. These two advised the officers that they had just arrived, and that they had not seen or heard anything.
The officers decided to inquire further of the original group. They parked their cruiser, got out, and walked toward the group, observing empty alcohol bottles which led them to believe that the group had been there for a while, including when the shot spotter was activated. As the officers approached, "the defendant immediately turned his back to the[m] with his hand on his waist walked away and began to talk on a cell phone. Having observed the defendant grab his waist and turn away as they approached, Officer Bissonnette, relying on his training and experience, recognized that this motion was consistent with someone possibly concealing a firearm." Bissonnette called out to the defendant, "[h]ey where you going man?" The defendant stopped and turned around. Bissonnette asked if he had anything on him he should not have, and the defendant said "no." Bissonnette asked if the defendant minded if he checked, and the defendant said "no" and raised his hands. Bissonnette pat frisked the defendant, and discovered a firearm in his front waistband.
Before trial, the defendant moved in limine to exclude any testimony by Bissonnette regarding the characteristics of an armed gunman. The defendant argued, among other things, that the foundational requirements for the admission of expert testimony had not been satisfied. The trial judge denied the motion without making any findings, and Bissonnette testified that he had been trained by the Federal Bureau of Alcohol, Tobacco and Firearms "in identifying the characteristics of an armed gunman." Bissonnette stated that he took "a training course that teaches [you] to identify the behavioral changes and changes in body movement associated with carrying unlawfully possessed firearms[,]" went on to explain those changes, then testified that he took the defendant's movements as he was walking away from the officers "to be maybe he was conducting a security check."
"Some of these are, like, heavy clothing not suitable for the weather; blading one's body when they're approached by police, conducting a security check with, like, their arm." He continued, "[w]hen a gun's carried in the waistband, like it commonly is in the neighborhood, it becomes loose or dislodged. A security check is, kind of, a way for the person carrying the gun to make sure it doesn't fall out. It's kind of done sly and undetected, or it's supposed to be." The person "[t]ouches where the firearm is on the waistband with either the forearm or the wrist."
Discussion. 1. Denial of motion to suppress. "When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error." Commonwealth v. Watson, 455 Mass. 246, 250 (2009). "We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found[,]" keeping in mind that "[q]uestions of credibility are the province of the motion judge who had the opportunity to observe the witnesses." Ibid.
The defendant argues error in the judge's finding that he grabbed his waistband as he walked away from the officers. We see no error, as the finding mirrors Bissonnette's testimony. The officers were entitled to approach the defendant "in the street and engage him in conversation, even ask him questions, without implicating [his] constitutional rights[,]" and Bissonnette's question, "[h]ey where you going man?" was not a seizure in the constitutional sense. Commonwealth v. Barros, 49 Mass. App. Ct. 613, 617-618 (2000), S.C., 435 Mass. 171 (2001). The defendant consented to Bissonnette's request to pat frisk him, and the judge correctly denied the defendant's motion to suppress. See Commonwealth v. Blais, 428 Mass. 294, 298 (1998) ("A search conducted with the consent of its subject is free of the strictures of the Fourth Amendment and art. 14").
2. Expert testimony on characteristics of an armed gunman. The defendant states that Bissonnette's testimony regarding the characteristics of an armed gunman should have been excluded. He preserved his objection, Commonwealth v. Pytou Heang, 458 Mass. 827, 836 (2011), and we review for prejudicial error. Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 54 (2003). Bissonnette's testimony "was more akin to a description of the modus operandi of" persons who carry illegal firearms. Commonwealth v. Dennis, 33 Mass. App. Ct. 666, 669 (1992), S.C., 416 Mass. 1001 (1993).
Even if the defendant is correct and the testimony was expert evidence, the judge did not abuse his discretion in admitting it. See Commonwealth v. Johnson, 410 Mass. 199, 202 (1991) ("The admission of such evidence is largely within the discretion of the trial judge . . ."). Bissonnette did not "testify extensively regarding the common characteristics" of an armed gunman, Commonwealth v. Roche, 44 Mass. App. Ct. 372, 380 (1998), and his "opinion was stated in unequivocal terms and rested on his own personal observations." Commonwealth v. Boyd, 367 Mass. 169, 181 (1975).
Judgments affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 21, 2015.