Opinion
14-P-564
12-04-2015
COMMONWEALTH v. CHRISTOPHER O'BRIEN.
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 was convicted of improper storage of a large capacity firearm in violation of G. L. c. 140, § 131L(a) and (b) (count 2), possession with intent to distribute cocaine in violation of G. L. c. 94C, § 32A(c) (count 4), and violation of a drug law in a school zone in violation of G. L. c. 94C, § 32J (count 5). He raises a number of issues on appeal, relating both to the denial of his motion to suppress and to his convictions.
First, the motion judge found that the defendant and his companions were stopped by the police in the hallway outside a particular apartment. This finding is sufficiently supported by the evidence, particularly the testimony of Officer Murray, who said, "I knew the scenario in which they'd come out of an apartment where a witness had seen them go in."
Second, the information in the possession of the police was adequate to allow them to stop the three individuals, as there was reasonable suspicion based on articulable facts that they had fired a gun in an alley near the apartment building. In particular, the police had information from two named witnesses that three men were firing a gun in the alley. These witnesses provided police with a description of some of the clothing the three men were wearing. The police also had information from a named 911 caller that three men in his apartment building had been talking about firing a gun and that they had entered apartment 36. The motion judge drew the reasonable inference that the officers who made the stop were in possession of all this information before they reached the apartment. When the officers arrived at apartment 36, they saw three men exiting, at least one of whom was wearing clothing consistent with the descriptions given by the first two witnesses. The consistency between the information received from three different witnesses and the officers' observations of the defendant and his companions gave rise to a reasonable suspicion.
One witness told the police that he saw what was either an "M80" (a type of fireworks) going off or someone shooting a gun into the air. An investigation of the scene confirmed it was gunfire.
In particular, it was reasonable to infer from the presence of the officers outside apartment 36 that they were in possession of the information that the three men talking about firing a gun had entered apartment 36.
The defendant argues next that he was detained longer than what was permissible for a Terry stop. Commonwealth v. Sanderson, 398 Mass. 761, 766-767 (1986). This argument however was not raised below and is therefore waived.
The finding of the motion judge that the primary occupant of the apartment voluntarily consented to a search of the apartment is not clearly erroneous. At the suppression hearing, the Commonwealth introduced in evidence a consent to search form that was signed by the primary occupant of the apartment. The form explicitly warns the signer that she has the constitutional right to refuse to allow a search. The conveyance of this information provides significant evidence that the consent was voluntary. Compare Commonwealth v. Rogers, 444 Mass. 234, 246 (2005) (rejecting as too restrictive a heightened constitutional standard that would require police officers to explicitly warn occupants of the right to refuse consent to search).
The defendant also argues that the scope of the occupant's actual or apparent authority did not extend to the men's clothing in a closet off the master bedroom that contained only men's clothing. Under the particular circumstances of this case, in which the renter of the apartment voluntarily consented to a search of the entire premises while the defendant and his two companions contemporaneously denied that they lived there, the renter had apparent authority to consent. See Commonwealth v. Porter P., 456 Mass. 254, 267 (2010), quoting from Illinois v. Rodriguez, 497 U.S. 188 (1990) ("Apparent authority is 'judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?"). That suffices to resolve the question.
As to the scope of the search consented to, the consent to look for material "connected in any way with the investigation" might have included, for example, receipts. Therefore, looking in the pockets of clothing was not beyond the scope of the search to which the apartment's occupant consented.
In light of what we have said, we conclude that the motion to suppress was properly denied.
The defendant also argues that there was insufficient evidence to convict him of improper storage of a large capacity firearm because the Commonwealth failed to establish that the firearm did not have the type of safety lock required by the statute. Although it is clear the Commonwealth would have done better to introduce testimony on this point, the photograph of the gun taken immediately after it was removed from the air duct in which it was found demonstrates that it was not equipped with a lock of any kind. We think this suffices.
Relatedly, the prosecutor did erroneously argue that one of the police officers had testified that there was no gun safety lock on the firearm. There was no objection, however, and in light of the judge's instruction that the jurors' memory of the evidence controls, we see no substantial risk of a miscarriage of justice. See Commonwealth v. Kater, 432 Mass. 404, 423-424 (2000).
Finally, the Commonwealth concedes, and we agree, that, as the defendant argues, the jury should have been instructed that the Commonwealth must prove a drug violation within 300 feet of a school rather than 1,000 feet. Commonwealth v. Bradley, 466 Mass. 551, 561 (2013).
The judgments on count 2, improper storage of a large capacity firearm, and count 4, possession of cocaine with intent to distribute, are affirmed. The judgment on count 5, the school zone charge, is vacated, the verdict is set aside, and the case is remanded to the Superior Court for either a new trial on that count or for resentencing on the remaining counts.
So ordered.
By the Court (Meade, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 4, 2015.