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Commonwealth v. Medina

Appeals Court of Massachusetts.
Jun 29, 2012
82 Mass. App. Ct. 1104 (Mass. App. Ct. 2012)

Opinion

No. 11–P–32.

2012-06-29

COMMONWEALTH v. Jose MEDINA.


By the Court (BERRY, VUONO & HANLON, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant was convicted of possession of a sawed-off shotgun and possession of ammunition without a firearm identification card. On appeal, the defendant argues that the motion judge erred in denying his motion to suppress. He also argues that the evidence was insufficient to establish that he had constructive possession of the firearm and that the statute which prohibits the possession of a sawed-off shotgun, G.L. c. 269, § 10( c ), is unconstitutional. We affirm.

1. Motion to suppress. Prior to trial, the defendant moved to suppress evidence (the firearm and ammunition), claiming that it was unlawfully obtained by police without a warrant and without consent to enter the residence where the items were found. Following an evidentiary hearing, the judge concluded otherwise. We agree with the judge's analysis in all respects and, therefore, we affirm the order denying the motion to suppress. In reviewing a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Powell, 459 Mass. 572, 574 (2011) (citations omitted). The judge found that shortly after midnight on March 22, 2009, Timothy Furtado telephoned the Brockton Police 911 line and reported that a man with a shotgun had tried to shoot someone outside his apartment building on Pleasant Street. Furtado provided a description of the person who had the shotgun, and specified the location of the apartment from which the man had emerged.

When the police arrived they found the front door of the apartment open and observed a woman, later identified as Amfosina Gomes, sitting inside the kitchen. The officers asked if they could enter the apartment and Gomes said that they could. The officers then asked Gomes whether she was alone. Just after she replied that she was the only person in the apartment, a man (the defendant) matching the description provided by Furtado, entered the kitchen from an adjoining bedroom. Gomes amended her statement to say, “and him.” The officers asked the defendant if there were any guns in the apartment. The defendant initially responded “no,” but then clarified his answer and stated that there had been but “they left,” indicating that the persons who had the firearms were gone. The officers told Gomes that they wished to perform a protective sweep of the apartment. She responded that the officers should do what they have to do.

One of the officers entered the bedroom where he found a sawed-off gun standing upright against the back wall of the closet and a live shotgun cartridge on the bed. The defendant was then placed under arrest. At this point, another woman entered the apartment and identified herself as the legal tenant. She gave the officers oral and written consent to search the apartment and a further search was conducted, but nothing of evidentiary significance was found.

Relying upon the doctrine of apparent authority as enunciated by the Supreme Judicial Court in Commonwealth v. Porter P., 456 Mass. 254 (2010), the judge concluded that because Gomes had never indicated that she was not a tenant at the apartment and the police had no reason to believe or assume when they found Gomes alone inside the kitchen at 1:00 A.M. that she was not a lawful resident, the officers were entitled to rely upon Gomes' “verbalized consent to their entry.”

Id. at 269–275. We agree with the judge that, on the facts as found, it was objectively reasonable for the officers to believe Gomes had authority to permit entry. There was no reason to doubt that Gomes had authority to consent to the entry of the police. Nor did the circumstances suggest that further exploration was necessary.

The judge also concluded that exigent circumstances justified the officers' protective sweep of the apartment. Because the defendant conceded at oral argument that the protective sweep fell within the exigency exception to the warrant requirement, and that the denial of the motion to suppress on these grounds was proper, we do not address this aspect of the judge's ruling.

We therefore conclude that the judge correctly determined that the Commonwealth had met its burden of establishing that Gomes had apparent authority and we affirm the judge's order denying the motion to suppress.

Commonwealth v. Lopez, 458 Mass. 383, 395 (2010), a case decided after the defendant's motion to suppress was denied, is distinguishable. In that case, the Supreme Judicial Court determined that because the police were looking for a known man but were admitted onto the premises by an unknown woman who gave them a “funny” look, they should have inquired as to the woman's status in relation to the premises. The court stated that the woman's presence in the room known to belong to the man and her “funny” look “created a ‘duty to explore, rather than ignore,’ the woman's relationship to the premises to establish whether she possessed common authority, or even actual authority, over the premises.” Ibid., quoting from Commonwealth v. Porter P., supra at 272.

2. Sufficiency of evidence. “In order to sustain a conviction for unlawful possession of a firearm, the Commonwealth must prove beyond a reasonable doubt that the defendant actually or constructively possessed the firearm.” Commonwealth v. Hubbard, 69 Mass.App.Ct. 232, 237 (2007). In this case, the testimony of Furtado who stated that he observed the defendant holding a shotgun and described how the defendant held it, walked with it and “leveled” it at several people before wrestling with another person over it was sufficient to permit the jury to infer that the defendant actually possessed the firearm in question. Additionally, the jury reasonably could have found that the defendant who emerged from the room where the firearm was found had constructively possessed the firearm.

3. Second Amendment claim. The defendant's assertion that his conviction should be reversed because the United States Supreme Court erred in holding that sawed-off shotguns are not protected by the Second Amendment is meritless. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court ruled that the Second Amendment does not protect the right to possess “dangerous and unusual weapons” such as sawed-off shotguns, citing United States v. Miller, 307 U.S. 174, 178 (1939), or weapons “that were not typically possessed by law abiding citizens for lawful purposes.” Heller, supra at 622–625. In this instance the decision of the United States Supreme Court constitutes binding precedent. See Commonwealth v. Powell, 459 Mass. 572, 584–589 (2011).

Judgments affirmed.


Summaries of

Commonwealth v. Medina

Appeals Court of Massachusetts.
Jun 29, 2012
82 Mass. App. Ct. 1104 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Medina

Case Details

Full title:COMMONWEALTH v. Jose MEDINA.

Court:Appeals Court of Massachusetts.

Date published: Jun 29, 2012

Citations

82 Mass. App. Ct. 1104 (Mass. App. Ct. 2012)
969 N.E.2d 750