Opinion
20-P-932 20-P-933
05-20-2021
COMMONWEALTH v. James KEARSE (and two companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Tried together in the Superior Court, the defendants, James Kearse and Tedros Hishe, were convicted of various offenses arising out of their joint possession of a firearm seized from the center console of a vehicle that Hishe was driving with Kearse as his sole passenger. Their primary claims on appeal concern the denial of their motions to suppress and the sufficiency of the evidence. We affirm.
Kearse was convicted of carrying a firearm without a license, G. L. c. 269, § 10 (a ), and possessing ammunition without a firearm identification (FID) card, subsequent offense, G. L. c. 269, § 10 (h ) (1). He was acquitted of carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ). Hishe was convicted of possession of a firearm having previously been convicted of a violent crime or serious drug offense in violation of G. L. c. 269, § 10G (a ). He was acquitted of possession of ammunition without an FID card, G. L. c. 269, § 10 (h ) (1), and of carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ).
1. Motions to suppress. The defendants assert that because the Commonwealth failed to show that the police had justification to order them out of the vehicle, to pat frisk them, or to search the interior of the vehicle, the judge erred in denying their motions to suppress. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error.... We review independently the application of constitutional principles to the facts found." Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
a. Findings of fact. We recite the facts as found by the motion judge, "supplemented by additional undisputed facts where they do not detract from the judge's ultimate findings." Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 541 n.3 (2020), quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).
At 7 P.M. on an evening in January 2018, Officers Timothy Callahan and Jonathan O'Brien were patrolling the Chinatown neighborhood of Boston after two recent firearms incidents in the area. The officers were in plain clothes in an unmarked police cruiser. Noticing that the operator and passenger of a passing vehicle, later identified as Hishe and Kearse, respectively, were not wearing seatbelts, the officers made a Uturn and began following them. The defendants made an abrupt turn into a parking lot, drove through to an adjacent street, and then entered the parking lot of an apartment complex, where they parked behind a snowbank, extinguished the headlights, and waited for about five minutes. The judge credited the officers’ characterization of the car's travel as "evasive" and their belief that the defendants were "hiding." The defendants then left the car and walked through the parking lot out of the officers’ view, returning five minutes later. Hishe then pulled out of the parking lot onto the street and ran through a red light at the first intersection.
Three days earlier there had been a "shots fired" incident nearby, in which O'Brien had recovered a firearm. Another incident involving firearms had taken place two days before that.
After observing the traffic violation, the officers sounded their siren and stopped the vehicle. O'Brien approached the driver's side, while Callahan approached the passenger's side. Callahan recognized Kearse, who was sitting in the front passenger's seat. He knew that Kearse had multiple firearms charges on his record, believed that he was affiliated with a gang, and was aware that one of the gang's members had recently been shot. Kearse's seat was almost fully reclined, and he was manipulating his cell phone with his right hand while keeping his left elbow "awkwardly" on top of the center console. The officers believed, and the judge found, that this was "odd and concerning" behavior.
Meanwhile, O'Brien asked Hishe for his license and registration. Hishe said he had lost his license; when retrieving the registration, "Hishe's hands shook, he fumbled, and he appeared very nervous." O'Brien returned to the cruiser to verify Hishe's license status. O'Brien confirmed that Hishe had valid license, but he also learned from the online criminal justice database that Hishe had a firearms charge on his record. The officers then asked the defendants where they were coming from; they responded that they had been visiting a cousin, whose first name they could not provide. The judge found that the officers "reasonably disbelieved" the defendants’ story.
The officers ordered the defendants out of the car. When Kearse exited, the officers noticed that the center console on which he had been leaning was "slightly ajar." The officers pat frisked the defendants, finding nothing. O'Brien then searched of inside the car, under the front seats and inside the center console. Underneath a tray inside the console O'Brien discovered a firearm.
b. Validity of exit order, patfrisks, and search of vehicle's interior. "[A]n exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2)police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). The officers’ belief "must be grounded in ‘specific, articulable facts and reasonable inferences drawn therefrom.’ " Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020), quoting Commonwealth v. Edwards, 476 Mass. 341, 345 (2017). A patfrisk "requires more; that is, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous." Torres-Pagan, supra at 38-39. In addition, officers may conduct a limited search of the interior of a vehicle, confined to areas from which the occupants of the vehicle might readily gain possession of a weapon, if the officers would be warranted in believing that their safety would be endangered when the occupants returned to the vehicle at the conclusion of the stop and frisk. See Commonwealth v. Douglas, 472 Mass. 439, 445-446 (2015), and cases cited therein. See also Silvelo, supra at 16 (protective search permitted where "defendant may access a weapon left behind upon returning to the vehicle"); Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 744 (2018) ("Police may conduct a protective sweep of the interior of a motor vehicle for a weapon so long as the search is limited to areas from where the defendant could access a weapon").
We agree with the motion judge's conclusion that the facts, "considered in totality," Torres-Pagan, 484 Mass. at 41, quoting Commonwealth v. Vazquez, 74 Mass. App. Ct. 920, 923 (2009), provided a reasonable basis for the officers not only to be concerned for their safety, but also to believe that the defendants were armed and dangerous, justifying the exit order, the patfrisks, and the search of the console. The officers were patrolling a neighborhood where recent incidents involving firearms had occurred. See Torres-Pagan, supra (judge properly considered reports of shots fired, gang activity, and violent crimes in vicinity within week preceding traffic stop). Upon seeing the officers, the defendants took evasive action. They parked behind a snowbank, waited in the vehicle with the headlights off, walked away, returned to the vehicle, and then again tried to evade the officers by running a red light. See Commonwealth v. Hernandez, 473 Mass. 379, 386 (2015) ("driver's evasive movements ... may be considered"). After the stop, Hishe was unusually nervous, while Kearse assumed an unnatural, awkward posture, suggesting he was concealing something in the center console. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (gestures "suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop"). In addition, the defendants gave an explanation for their prior conduct, that the officers reasonably disbelieved. Cf. Commonwealth v. Watson, 430 Mass. 725, 734 (2000), quoting Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) ("implausible answers to police questions will, with other facts, support a finding of probable cause to conduct a search"). Both men had firearms charges on their records, and Kearse was associated with a gang that had recently been involved in a shooting. See Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009) (history of "weapons-related offenses" relevant to reasonable suspicion analysis). Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841 (2010) (firearms charges and gang affiliation properly considered; "the police are not required to blind themselves to the significance of either gang membership or the circumstances in which they encounter gang members, which are all part of the totality of the circumstances they confront and must assess").
On appeal, the defendants do not challenge the validity of the stop, which was lawfully based on the traffic violation the officers observed. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle").
Altogether, the officers could reasonably conclude that the defendants were armed and dangerous, with at least one gun within reach -- under Kearse's elbow in the center console. The officers’ reasonable suspicions, based on specific and articulable facts and not just a mere hunch, see Commonwealth v. Silva, 366 Mass. 402, 406 (1974), justified their actions of ordering the defendants out of the car, pat frisking them for weapons on their persons, and searching the center console for weapons. See Galarza, 93 Mass. App. Ct. at 744 (search of center console proper where defendant refused to open console and placed hand over compartment to prevent access).
To be sure, Hishe's failure to produce a driver's license, his nervousness, and both defendants’ evasive responses to the officers’ questions, standing alone, did not give rise to reasonable suspicion. See Commonwealth v. Cordero, 477 Mass. 237, 243-244 (2017), and cases cited; Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125-126 (2005). Likewise, the officers’ familiarity with Kearse's gang affiliation alone would be insufficient to support a reasonable belief that the defendants posed a "threat to the safety of an officer." Elysee, 77 Mass. App. Ct. at 841. Nevertheless, the fact "[t]hat there may be an innocent explanation for the defendant[s’] actions ‘does not remove [those actions] from consideration in the reasonable suspicion analysis.’ " Commonwealth v. Gomes, 453 Mass. at 511, quoting Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007). This is not a case like Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 472 (1996), where "[a]dding up eight innocuous observations -– eight zeros – d[id] not produce a sum of suspicion." "Viewed through the eyes of experienced police officers and as a whole," the defendants’ conduct gave rise to reasonable suspicion. Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 346 (2010). The judge properly denied the motions to suppress.
2. Sufficiency of the evidence. At trial, the Commonwealth proceeded on the theory of constructive possession. "Constructive possession requires ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Reyes, 98 Mass. App. Ct. 797, 801 (2020), quoting Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019). Hishe and Kearse each contend that the evidence was insufficient to prove that either knew the gun was present or to prove that either intended to exercise dominion and control over it.
Constructive possession of contraband found in a vehicle cannot be proven solely by evidence that the defendant was the driver or an occupant of the vehicle. "[N]aked reliance on these factors comes ‘perilously close to endorsing guilt by presence at the scene of contraband, a concept we have disavowed.’ " Commonwealth v. Romero, 464 Mass. 648, 658 (2013), quoting Commonwealth v. Sespedes, 442 Mass. 95, 102 (2004). "Rather, our cases emphasize the need for ‘other incriminating evidence’ –- a so-called ‘plus factor’ –- in addition to evidence of proximity." Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019), quoting Commonwealth v. Ortega, 441 Mass. 170, 174 (2004). "[P]resence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ " Romero, supra at 653, quoting Commonwealth v. Albano, 373 Mass. 132, 134 (1977).
"[A] sufficiency of the evidence evaluation for constructive possession is necessarily fact-specific, and turns on the totality of the evidence." Santana, 95 Mass. App. Ct. at 268. The Commonwealth may rely on circumstantial evidence and reasonable inferences drawn therefrom. See Romero, 464 Mass. at 653. The evidence must be viewed in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The evidence at trial was essentially the same as that adduced at the suppression hearing, minus the evidence of the defendants’ criminal records, their firearms activity, and Kearse's gang affiliation. Significantly, O'Brien testified that the unmarked police cruiser he was driving had a fixed antenna, "exterior low profile lights" (that is, affixed on the outside but not on the roof), and was "readily identifiable as a police vehicle." When O'Brien made brief eye contact with Hishe, Hishe quickly averted his eyes. Hishe then "made an immediate and abrupt out of nowhere" turn into the parking lot of a nearby apartment complex, where he parked the car behind a snowbank and turned off the headlights. After ten minutes, Hishe drove out of the parking lot and ran a red light.
During his interaction with police, Hishe appeared unusually nervous -- O'Brien testified that he could see Hishe's chest rising and falling at a rapid rate -- and told the officers that he and Kearse had been visiting "our cousin," who was known to him only by her last name, which was transcribed as "Ms. Pay." In addition, the Commonwealth produced evidence that the gun was "racked," meaning that "there was a round in the chamber" and "the gun could have been fired at any time with the pull of the trigger."
The defense thoroughly cross-examined O'Brien about his ability to see Hishe's heart beating, and the defense also offered evidence that Hishe sometimes visited a woman who lived at the apartment complex, whom he called either "Ma" or "Ms. Pugh." "The interpretation of the troopers’ testimony regarding the defendant's conduct concerns ‘the weight and the credibility of the evidence, a matter wholly within the province of the jury.’ " Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 593 n.6 (2007), quoting Commonwealth v. Ortega, 441 Mass. 170, 174 (2004).
This evidence thus permitted the jury to conclude that Hishe drove evasively to avoid an interaction with police and thereby prevent detection of the firearm that had recently been placed in the center console, proving that he had knowledge of its presence and the intent to exercise control over it. See Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012) (sufficient evidence of constructive possession of firearm where driver sped away from police and passenger threw firearm from car); Santana, 95 Mass. App. Ct. at 268 ("whether [defendant] took any evasive actions" relevant to constructive possession analysis). "The evidence placed this case in the category of automobile decisions in which a defendant's proximity, access, and collateral conduct ... permitted the inference of an intention to exercise control over contraband or forbidden weaponry in the vehicle." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 (2013).
As to Kearse, his positioning of his elbow over the center console, which became ajar after he removed his elbow, permitted an even stronger inference that he knew the gun was there and intended to exercise control over it. See Commonwealth v. Cooper, 97 Mass. App. Ct. 772, 773-774 (2020), citing Galarza, 93 Mass. App. Ct. at 744, 748 (coupled with defendant's nervousness, "attempts to block officers’ access to the center console were sufficient to prove that the defendant knowingly possessed the firearm"); Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 592-593 (2007), quoting Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995) ("attempts to conceal ... contraband ... permit an inference of unlawful possession").
"Taken in its totality, the evidence was sufficient to prove beyond a reasonable doubt that the defendant[s] knew of the firearm ... and that [they] had the ability and intention to exercise control over [it]." Commonwealth v. Summers, 93 Mass. App. Ct. 260, 263 (2018).
3. Closing argument. Prior to closing arguments, the judge instructed the jury on the burden of proof and the elements of the crimes charged. In their closings, defense counsel argued that the Commonwealth had failed to prove that the defendants had the intent to exercise dominion and control over the gun. The defendants assert that the prosecutor misstated the law in his closing by discussing the defendant's ability to exercise dominion and control without mentioning their intent to do so. Defense counsel timely objected and requested a curative instruction, but the judge declined to comment, stating that "it was argument" and that the jury would be given a written copy of the instructions -- as they were.
We discern no error. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368 (2009). "[L]awyers are permitted some leeway during closing argument to discuss the law as it pertains to their case, to give context to the facts they argue, but they are not required to do so," as long as they do not misstate the law. Commonwealth v. Niemic, 472 Mass. 665, 671 (2015).
The prosecutor's failure to discuss the intent element of constructive possession did not amount to a misstatement of the law. The prosecutor emphasized the aspects of the applicable law favorable to the Commonwealth, just as defense counsel had emphasized aspects of the law favorable to their clients. See Commonwealth v. Feroli, 407 Mass. 405, 409 (1990) ("A prosecutor is entitled to emphasize the strong points of the Commonwealth's case"). Importantly, the prosecutor prefaced the challenged portion of his argument by telling the jurors that they would have the judge's instructions to refer to, stating, "[Y]ou're going to have this in writing with you back there, you're going to read it yourself." We presume that the jurors followed those instructions. See Commonwealth v. Orton, 58 Mass. App. Ct. 209, 213 (2003).
4. Officer's statement that he knew Kearse. Kearse claims that reversible error arose from O'Brien’s stating "I knew Mr. Kearse" when asked on cross-examination whether Kearse provided his full name during the traffic stop. The judge promptly sustained defense counsel's objection and struck the testimony from the record. The judge denied Kearse's motion for a mistrial the next day, noting that he had sustained the objection, granted the motion to strike, and would instruct the jury "what all that means."
In the final charge, the judge instructed, "So, if I told you to ignore a witness’ answer by striking the answer, you cannot consider it in your deliberations."
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This case "does not present a situation where the force of the [struck testimony] was overwhelmingly prejudicial and likely to leave an indelible imprint on the jurors’ minds." Commonwealth v. Morgan, 449 Mass. 343, 361 (2007), quoting Commonwealth v. Fazio, 375 Mass. 451, 455 (1978). We presume the jury followed the judge's instruction to disregard the stray remark. See Commonwealth v. Caldwell, 459 Mass. 271, 278 (2011). Likewise, the struck testimony was an isolated comment and not so inflammatory or prejudicial as to preclude the possibility of a fair trial. The judge did not abuse his discretion in denying the motion for a mistrial. See Commonwealth v. Silva, 93 Mass. App. Ct. 609, 615-616 (2018).
Judgments affirmed.