Opinion
13-P-1213
10-29-2014
COMMONWEALTH v. SAMNANG POK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Samnang Pok, was found guilty of possession of a firearm without a license, in violation of G. L. c. 269, § 10(a), and carrying a loaded firearm, in violation of G. L. c. 269, § 10(n). On appeal, the defendant challenges the denial of his motion to suppress statements, arguing that the officer improperly asked him for a firearm license and that when he said that the handgun was his, he was responding to the functional equivalent of interrogation while he was in custody and had not received Miranda warnings. He also contends that the ballistician's trial testimony that the handgun met the statutory requirements of a firearm was reversible error and that the judge abused her discretion by admitting evidence that suggested the defendant was a member of a gang. We affirm.
1. The motion to suppress. We review the judge's decision on the motion to suppress in accordance with the familiar standard: we accept the judge's subsidiary findings of fact absent clear error but we independently review the ultimate findings and conclusions of law. Commonwealth v. Gonzalez, 465 Mass. 672, 674 (2013). The judge found that "Officer Ramirez demanded that the three occupants produce a license for the firearm found in the car." The defendant has not demonstrated that the finding was clearly erroneous and our review makes us confident that the record supports the judge's finding. Although the defendant was in custody, he was not subjected to the functional equivalent of interrogation. See Commonwealth v. Haskell, 438 Mass. 790, 796 (2003) (lawful order to produce or exhibit license for firearm does not implicate Miranda rights because it does not invite testimonial response). The defendant also argues that his statement, "It's mine," was the result of the functional equivalent of interrogation. Again, the judge's factual findings are amply supported by the record: the officer demanded a license to carry a firearm and when one was not produced, the officer told them that they would be arrested for illegal possession of the firearm. At that point, the defendant volunteered that the firearm belonged to him. As the judge concluded, the officer's "mere explanation to the three individuals that he would arrest them" did not rise to the level of interrogation or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (interrogation includes express questioning as well as functional equivalent of interrogation such as "any words or actions on the part of the police [other than those normally attendant to arrest and custody] that the police should know are reasonably likely to elicit an incriminating response"). There was no error in the denial of the motion to suppress.
2. The ballistician's testimony. The defendant argues, correctly, that the testimony of the Commonwealth's ballistics expert that the gun met the requirements of a "firearm" constituted improper testimony regarding an ultimate issue to be decided by the jury. The defendant did not timely object to the testimony or move to strike it; thus our review is limited to whether the testimony created a substantial risk of a miscarriage of justice. Although the witness should not have testified that the gun met the statutory definition of a firearm under G. L. c. 140, § 121, he did not offer an opinion whether the defendant possessed the gun, which was the disputed issue at trial. See Commonwealth v. Ianello, 401 Mass. 197, 202 (1987). The testimony did not create a substantial risk of a miscarriage of justice. First, as noted, the main issue at trial was possession, not whether the gun was a firearm. Second, we have recognized that the burden of establishing that the gun is a "firearm" is not particularly onerous. See Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). Third, the jury were properly instructed that they were to determine whether the gun was a "firearm" within the meaning of the statute and they were instructed on the statute's definition of a firearm. Fourth, the judge instructed the jury that they did not have to accept the expert's opinion. Finally, the jury had sufficient evidence before them to determine whether the gun was a "firearm." The officer who discovered the gun referred to it as a "handgun" throughout his testimony. See Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977) (testimony that gun was handgun or revolver was sufficient evidence of barrel length). The gun was displayed in the court room and there was testimony regarding its operability. The gun was available to the jury during deliberations. In these circumstances, the ballistician's testimony did not create a substantial risk of a miscarriage of justice.
3. Evidence suggesting that the defendant was in a gang. The defendant argues that the judge abused her discretion by allowing him to explain the term "tag name" on cross-examination. The defendant had used the term "tag name" on direct examination. On cross-examination, he explained that it was a name given to any person so that his real name would not be known and that it was a name "given on the street." At no time were the terms "gang" or "gang name" mentioned. There was no error. This testimony did not run afoul of the judge's ruling on the motion in limine and the judge did not abuse her discretion by allowing the defendant to explain the phrase.
Judgments affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: October 29, 2014.