Opinion
14-P-1995
01-28-2016
COMMONWEALTH v. WENDELL A. MORRIS.
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
After a jury trial, the defendant was convicted of possession of a firearm during the commission of a felony, unlicensed possession of a firearm, carrying a loaded firearm, carrying a firearm without an FID card, and possession of counterfeit notes. On appeal, he claims error in the denial of his motion to suppress, and that his sentence must be vacated because it was based on improper considerations and a misunderstanding of the governing statute. We affirm.
This conviction was dismissed by agreement as duplicative with the conviction on the count of carrying a loaded firearm.
1. Motion to suppress. The defendant claims that the search of the backpack (which resulted in the seizure of the counterfeit notes), and the subsequent patfrisk of his person (which resulted in the discovery of the firearm), violated his constitutional rights. We disagree, as the police officers testified to facts that amply supported their reasonable apprehension that the defendant could pose a danger to themselves or others.
The facts supporting police apprehension derive from two sources. The first is based on the officers' prior knowledge of the defendant's history with firearms carried in a backpack. The second source is based on what the police officers observed at the scene, where the defendant behaved in a suspicious manner and made statements adding to the officers' concerns for their safety.
Relative to the first source, Officer Aylward knew that the defendant had previously been charged with a shooting and with illegal possession of a firearm. In fact, she had participated in the motor vehicle stop where a firearm was recovered from the defendant's backpack. That case was still pending at the time of the stop in this case. She also knew that the defendant was paralyzed from a shooting injury. Furthermore, Officer Sirois, who performed the patfrisk here and discovered the firearm in the defendant's sweatpants, similarly knew that the defendant had been involved in prior firearms incidents, and that he had been charged with firearm offenses.
In general, the police have the ability to consider their knowledge of a defendant's past firearm offenses or his past use of firearms to support their reasonable apprehension of fear justifying a patfrisk. See Commonwealth v. Nutile, 31 Mass. App. Ct. 614, 618 (1991); Commonwealth v. Dasilva, 66 Mass. App. Ct. 556, 561 (2006); Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 583 (2009). The purported difference in this case is that although the police knew of, and participated in, the defendant's prior case where a firearm was discovered in his backpack, that gun was ultimately suppressed as the product of an illegal search.
The judge who suppressed the gun in the prior case was also the judge who denied the motion to suppress in this case. He took judicial notice of the prior case.
In light of the suppression of the gun in the earlier case, the defendant claims the officers' prior knowledge of the evidence was fruit of the poison tree and could not support or supply the justification for the patfrisk in this case. In support of this novel concept, the defendant relies on Commonwealth v. Peters, 453 Mass. 818 (2009). That reliance is misplaced. At issue in Peters was the lawfulness of two warrantless protective sweeps of a dwelling. Id. at 823. The officers' initial entry and first protective sweep of the dwelling met both of the requirements of the "emergency aid" exception, i.e., there must be objectively reasonable grounds to believe that an emergency exists, and the sweep must be reasonable under the circumstances, and limited in scope to its purpose -- a search for victims or suspects. Ibid. However, once the first protective sweep was completed, the officers no longer had reasonable grounds to believe that anyone in the house required their assistance. Thus, a second sweep, fifteen to twenty minutes later, could not be justified on the same grounds as the first. Id. at 824-825. The court did not hold that knowledge gained during an unlawful search cannot later support an officer's reasonable apprehension of fear to justify a patfrisk (or for any other purpose), and Peters is not apposite.
In any event, putting aside the question whether a police officer's reasonable apprehension of danger resides in a constitutional vacuum unacquainted with the reality of his or her job, or whether the suppression of the gun in the prior case carries with it the suppression of the officers' underlying knowledge of the defendant's involvement in the case, we need not resolve the validity of the defendant's claim, because even without their prior knowledge of the defendant, the patfrisk was justified based on what the police encountered at the scene.
The defendant's actions and statements at the scene created a reasonable apprehension of danger for the officers. Once the defendant learned that the driver was going to be arrested, he lied about having a valid license himself. After this lie was revealed, the defendant then lied about the backseat passenger, Potvin, having a valid license. Also, when the driver was being taken out of the car, an officer saw the defendant throw the backpack into the backseat area at Potvin's feet. Potvin immediately asked to speak to the officers and informed them that the backpack was not his. While the officer watched the defendant inside the car, his arms were moving about and he was shifting in his seat despite being told to remain still. The defendant also became visibly upset when he was told the car would be towed, and even more upset when his mother arrived without a wheelchair for him. When all of these actions and statements are viewed collectively, they provide ample justification for an exit order and patfrisk of the defendant as well as a look inside the backpack. See Commonwealth v. Stampley, 437 Mass. 323, 328-329 (2002); Commonwealth v. Goewey, 452 Mass. 399, 407 (2008). See also Commonwealth v. Myers, 82 Mass. App. Ct. 172, 177 (2012) (police entitled to conduct protective sweep of vehicle because defendant could have returned to vehicle and recovered hidden weapon at end of encounter).
The defendant also claims for the first time on appeal that the search of the backpack was a greater intrusion than was warranted in the circumstances. Relative to the backpack, the defendant argued in his motion to suppress that there was no search warrant authorizing the seizure of the backpack, the search was not consented to, and there was no probable cause to believe the backpack contained evidence of a crime. A motion to suppress "shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity." Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). "This requirement alerts the judge and the Commonwealth to the suppression theories at issue, and allows the Commonwealth to limit its evidence to these theories." Commonwealth v. Silva, 440 Mass. 772, 781 (2004). As the defendant failed to raise this issue in his motion to suppress, the Commonwealth was under no obligation to provide evidence that supported the level of intrusion that was warranted in the circumstances. As such, the claim is waived.
Even if the claim was not waived, it lacks merit. Given the defendant's continual movements in the car, his moving the backpack to the feet of the backseat passenger, and his misrepresentations concerning his and Potvin's license status, a reasonable suspicion regarding the backpack existed. Here, Aylward's looking in the backpack and retrieving the currency was a level of intrusiveness that was "proportional to the degree of suspicion that prompted it." Commonwealth v. Torres, 433 Mass. 669, 672 (2001). Although Aylward did not pat frisk the backpack before looking inside, the backpack was not zipped shut. See Commonwealth v. Leone, 386 Mass. 329, 330 n.2 (1982) (fair inference that unzipped bag was closed but not fastened shut and was opened when officer picked it up).
As the Supreme Judicial Court noted in Commonwealth v. Pagan, 440 Mass. 62, 69-71 (2003), a patfrisk of a container is not a necessary requirement for every container, and when a patfrisk will do nothing to protect the suspect's privacy, a patfrisk is "useless." Because the backpack was unzipped when Aylward looked inside, an additional patfrisk would provide no further protection to the defendant's privacy. In addition, it was necessary to look inside for a weapon because, as Aylward testified, there exist firearms light enough that she would not feel them when she picked up the bag.
2. Sentencing. The defendant claims for the first time on appeal that his sentence was based on a misunderstanding and on improper considerations by the judge. We disagree. Because this was not preserved by an objection, we review only to determine if there was error, and if so, whether that error created a substantial risk of a miscarriage of justice.
The defendant claims that the parties and the judge were operating under a misunderstanding that G. L. c. 265, § 18B, required a minimum mandatory sentence of five years in State prison. See Commonwealth v. Hines, 449 Mass. 183, 191 (2007). Although both the Commonwealth and the defendant presented this erroneous characterization of the sentencing provision to the trial judge, there is no evidence that the judge relied upon improper grounds in sentencing the defendant. In fact, the judged stated that even before he heard from the parties, his "thinking was along the lines of a five for the bottom number." He did not state the bottom number in terms of a mandatory minimum sentence, but rather his focus was on what would be appropriate for the defendant's supervised release after he finished a term of incarceration. The language of G. L. c. 265, § 18B, first par., does not set forth what has been termed a mandatory minimum sentence, in that the language does not prohibit a sentencing scheme which provides for the possibility of a suspended sentence, eligibility for probation, parole, furlough or work release, nor does it prohibit any deduction from the sentence for good conduct until the prisoner has served the minimum term of the sentence. See Commonwealth v. Brown, 431 Mass. 772, 775-776 (2000). All of these prohibitions, however, are set forth under the subsequent offender portion of the statute, i.e., the second paragraph of G. L. c. 265, § 18B, which sets forth a true mandatory minimum sentence. But if a statute requires a sentence of "not less than" a certain number of years, that number of years "is always the shortest sentence that can be imposed." Commonwealth v. Brown, supra at 779. As such, there was no error in having five years as the bottom number of the sentence structure.
Finally, and also for the first time on appeal, the defendant claims the judge improperly chose fifteen years as the top of the sentence range based on the defendant's disability. We disagree. The judge created a sentence structure that reflected his concern, based on the facts of this case and on the defendant's record, that the defendant posed a significant danger to the community, and that ultimately parole supervision would provide more flexibility than probation. The judge chose fifteen years as the maximum to be served to ensure the opportunity for lengthy parole supervision and a swifter revocation process in the event the defendant should violate the terms of a parole release. Although the judge should not have expressed his belief that the defendant would likely be paroled because the Department of Correction will want to reduce the costs of the defendant's medical care, we do not believe that remark created a substantial risk of a miscarriage of justice. Contrast Commonwealth v. Amirault, 415 Mass. 112, 116-117 (1993) (after defendants were denied parole, it was improper for sentencing judge to revise and revoke defendants' sentences to term of years which reflected judge's intention of when they should have been paroled). The judge's statement was an isolated remark during the course of a lengthy and thoughtful discussion of a proper sentence for the defendant. The gravamen of the judge's sentencing decision did not turn on parole eligibility, but rather on the defendant's "deeply engrained" history of criminal activity and the need for supervision. Finally, contrary to the Commonwealth's claim, to the extent there was any impropriety in the judge's remarks at sentencing, the fact that the Appellate Division of the Superior Court reduced the defendant's sentence to five to eight years, does not itself cure the impropriety. See Commonwealth v. Souza, 390 Mass. 813, 817 (1984). Although an appeal to the Appellate Division is not a substitute for an appeal to this court or the Supreme Judicial Court, Commonwealth v. White, 48 Mass. App. Ct. 658, 664 (2000), the reduction in the possible term of postrelease supervision further militates against any creation of a substantial risk of a miscarriage of justice.
At the sentencing hearing, defense counsel agreed with the judge's statement that the defendant's medical care will be expensive if the defendant is incarcerated for a long period of time. But the concern counsel voiced at the hearing was not grounded in the agreed-upon fiscal consequences of the sentence. Rather, counsel was concerned that the judge was assigning the defendant's release decision to the parole board instead of the judicially-based probation system.
Judgments affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 28, 2016.