Opinion
15-P-1729
02-24-2017
COMMONWEALTH v. Eric Flores POWELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the judgments after his convictions, after a bench trial, of reckless operation of a motor vehicle, and leaving the scene of property damage. For the reasons set out in this decision, we affirm.
Background . Two police officers in an unmarked car observed the defendant driving a Volkswagen missing a front license plate. They pulled the car over because of the civil infraction, approached, and asked the defendant for his license and registration. As he leaned over to get his registration, one of the officers saw a silver folding knife clipped to the defendant's waistband on his lower back. The officer stated that he would remove the knife for his own safety, but that he would likely return it at the conclusion of the motor vehicle stop. As the officer then attempted to open the car door, the defendant placed the car in drive and accelerated down the street, dragging the officer with him until he (the officer) let go. The officers returned to their vehicle and gave chase. Another officer in a marked cruiser that happened to be nearby saw what was happening and turned to pursue the defendant. The defendant drove his car straight into the marked cruiser. Gun drawn, the officer instructed the defendant to stop. Instead, the defendant reversed, sped down a side street, and eventually fled on foot.
Discussion . The pro se defendant's arguments are in large part difficult to understand, unsupported either by the law or by the record, and often do not rise to the level of appellate argument. On these bases alone, his arguments are doomed. However, we note in addition the following with respect to various of his claims.
The defendant argues that (certain unspecified) evidence should have been suppressed. He did not move to suppress below nor did he preserve the issue in any other manner. The argument is accordingly waived. Commonwealth v. Shine , 398 Mass. 641, 653 (1986). Moreover, to the extent the defendant's argument rests on the assertion that the stop was unlawful, the record does not appear to support it. This began as an ordinary traffic stop. To the extent the defendant's argument rests on the assertion that a search occurred, there appears to be no evidence to support that contention. The knife came into plain view when the defendant leaned over to get his registration. To the extent the defendant is arguing that his subsequent actions (flight, and so forth) should have been suppressed, he has provided no authority to support the idea that his own illegal actions are subject to the exclusionary rule. See Commonwealth v. Gomes , 59 Mass. App. Ct. 332, 337-338 (2003) ; Commonwealth v. Coleman , 64 Mass. App. Ct. 558, 562-563 (2005).
The defendant next contends that the judgments should be reversed because the officers committed "perjury." In essence, this is an argument about the credibility of the officers' testimony. That, however, is a matter conferred to the fact finder and the defendant has given us no reason to disturb his assessments. See, e.g., Johnston v. Johnston , 38 Mass. App. Ct. 531, 536 (1995) (credibility in bench trial is "quintessentially the domain of the trial judge" and "close to immune from reversal on appeal except on the most compelling of showings").
Finally, the defendant argues that the affirmative defenses of entrapment, necessity, and excessive force apply. We discern no error in the judge's ruling that there was no evidence of government inducement to support an entrapment defense. Neither necessity nor excessive force were raised below but, in any event, the defendant has not pointed to anything in the record that would support them.
Judgments affirmed .