Opinion
No. 11–P–2164.
2013-07-16
COMMONWEALTH v. Corey S. RAWSON.
By the Court (COHEN, GRAHAM & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court jury trial, the defendant was convicted of carrying a dangerous weapon (a double-edged knife). See G.L. c. 269, § 10( b ). On appeal, the defendant argues that the seizure of the knife was constitutionally impermissible and, hence, his motion to suppress should have been allowed. He also argues that his trial counsel was ineffective for failing to move to strike testimony adverting to prior arrests. We affirm.
1. Motion to suppress. a. Facts.
On the afternoon of March 12, 2010, an identified citizen called the Lowell police to report that a man walking down Middlesex Street was carrying an assault rifle. Police dispatch transmitted a priority one tone, indicating a serious situation that likely involved weapons. Officer Kandrotas was the first officer to arrive on the scene. He saw a man matching the description given by the caller, carrying what appeared to be an assault rifle. The officer drew his service firearm and ordered the defendant to drop the weapon. The defendant did so, put his hands up, and began to approach the officer, who maintained his position. Immediately thereafter, Officers Collins and Purcell arrived and took up defensive positions. Officers Tetrault and St. Arnaud arrived in another police car, approached the defendant, and began handcuffing him behind his back.
We recite the relevant facts found by the motion judge, supplemented by undisputed testimony at the suppression hearing which the judge implicitly credited. See Commonwealth v. Eddington, 459 Mass. 102, 104 (2011).
As this was happening, Officers Collins and Purcell walked over to the weapon, which lay approximately ten yards away from the defendant. Officer Purcell picked up the weapon, believing it to be an AR–15 or M4 assault rifle, and immediately determined from its light weight that it was an airsoft replica; however, its tip—normally orange to indicate that it was an airsoft rifle—had been painted black. Simultaneously, Officers Tetrault and St. Arnaud determined the defendant's identity and called the information into dispatch.
As Officers Collins and Purcell were walking back towards the defendant to inform the other officers that the rifle was a replica, Officer Purcell saw that the defendant was holding a double-edged knife behind his back and was trying to discard it. Officer Purcell called out to the officers holding the defendant, and they ordered him to drop the knife. Meanwhile, information came back from dispatch indicating that the defendant had an outstanding warrant, for which the defendant was then placed under arrest.
b. Discussion.
There is no merit to the defendant's contention that immediately upon discovering that the rifle was a replica, the officers no longer could hold him or seize the knife. Just as Officer Purcell was about to communicate his observations about the rifle, he saw the defendant with a double-edged knife in his hands and alerted the officers standing by the defendant. At the same time, the officers also learned that the defendant had an outstanding warrant for his arrest. Accordingly, the police had probable cause to arrest the defendant on the outstanding warrant and also for possession of an illegal knife and to seize the knife incident to arrest. See G.L. c. 276, § 1; Commonwealth v. Clermy, 421 Mass. 325, 330 (1995); Commonwealth v. Quilter, 81 Mass.App.Ct. 808, 810 (2012).
In reviewing the denial of a motion to suppress, “we accept as true the subsidiary findings of fact made by the judge absent clear error, but make our own independent determination on the judge's application of constitutional principles to the facts as found.” Commonwealth v. Peters, 453 Mass. 818, 822–823 (2009) (internal quotation marks and citations omitted).
Contrary to the defendant's position, the judge's findings as to the sequence of events are not clearly erroneous. Our independent review of the motion hearing transcript confirms that there was ample support for the judge's chronology.
2. Ineffective assistance of counsel. During cross-examination by defense counsel, Officer Kandrotas was asked why the police report indicated that the defendant was self-employed. The officer replied that he believed the information already was in the computer from previous arrests. The defendant's ineffective assistance claim is predicated upon trial counsel's failure to move to strike this response.
A claim of ineffective assistance ordinarily should be raised by means of a motion for a new trial, and may be resolved on direct appeal only when the factual basis of the claim appears indisputably on the record. Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). We give trial counsel's tactical decisions due deference and will not find ineffective assistance unless such a decision was manifestly unreasonable when made. Commonwealth v. Harbin, 435 Mass. 654, 656 (2002).
So far as appears from the trial record, refraining from moving to strike was consistent with a defense strategy of portraying the defendant as the victim of overzealous police practices. Thus, it was not manifestly unreasonable for counsel to refrain from moving to strike the testimony. Nor are we persuaded that the fleeting reference to the defendant's prior arrests created a substantial risk of a miscarriage of justice, given the strength of the Commonwealth's case. See Commonwealth v. Randolph, 438 Mass. 290, 295–296 (2002) (equating ineffective assistance standard to substantial risk standard where waiver of claim stems from an omission by defense counsel).
Judgment affirmed.