Opinion
No. 10–P–1152.
2013-12-23
COMMONWEALTH v. Alex VALLE.
By the Court (KAFKER, VUONO & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Alex Valle, was convicted of various offenses arising out of the discovery of a firearm during an inventory search of an automobile. He appeals from his convictions and from the denial of his motion for a new trial which alleged ineffective assistance of counsel. In his direct appeal, the defendant contends that his motion to suppress should have been allowed because the firearm was found and subsequently seized during an invalid inventory search; the trial judge erred in not permitting trial counsel to suggest in his closing argument that the defendant falsely confessed to ownership of the gun because of his gang-related obligations; and his convictions for possession of a loaded firearm and possession of ammunition are duplicative. With regard to his new trial motion, the defendant claims that trial counsel was ineffective for failing to submit a memorandum or legal authority in support of his suppression motion that claimed the inventory search was invalid and for failing to move to supress the firearm on the theory that the motor vehicle stop was the result of racial profiling. He also argues that the judge abused his discretion by concluding that the evidence he provided fell short of what was needed to show that the State police trooper who stopped the car acted with the intent to discriminate. He further argues that the judge should have granted his request for an evidentiary hearing. We affirm.
1. Motion to suppress. We summarize the facts as found by the motion judge after an evidentiary hearing. At approximately 5:00 P. M., on January 24, 2009, State police Trooper Evan Breeding was parked at an intersection near Interstate Highway 291 in Springfield observing traffic when he conducted a “spot inquiry” of the status of the registration of a green Toyota Camry. The inquiry disclosed that the vehicle's registration had been suspended; as a result, Breeding stopped the car. Thereafter, Breeding learned that neither the driver of the automobile nor the defendant, who was a passenger, had a valid license to operate a motor vehicle. Breeding called for assistance and upon the arrival of another trooper, the driver was arrested. Because the car was unregistered and therefore could not be driven, the troopers made arrangements to have the car towed.
Breeding referred to the inquiry as a “random query.”
Breeding testified, and the judge found, that State police procedures require that an inventory search be conducted before a vehicle is towed. In this case, the inventory search was conducted pursuant to a written inventory policy, a copy of which was introduced as an exhibit at the motion hearing. During the course of the inventory search, Breeding picked up a jacket from the back seat of the car and discovered it was much heavier on one side. He then felt the outside of the jacket and recognized the shape of a gun. Breeding looked inside the pocket of the jacket and retrieved a loaded .22 caliber firearm.
The defendant subsequently admitted that the jacket and firearm belonged to him. The defendant did not move to suppress those statements.
On the basis of these facts, the motion judge concluded that the discovery of the firearm was made in the course of a valid inventory search. We agree.
An inventory search of an automobile that is about to be towed and impounded is constitutional as it is done “for the purpose of protecting the car or its contents, for the purpose of protecting the police against unfounded charges of misappropriation of such property, for the purpose of protecting the public against the possibility that the car might contain weapons or other dangerous instrumentalities which might fall into the hands of vandals, or for a combination of such reasons.” Commonwealth v. Matchett, 386 Mass. 492, 510 (1982). Such searches are permissible under both the Federal and State Constitutions if they are done in accordance with standard, written police procedures. Commonwealth v. Allen, 76 Mass.App.Ct. 21, 24 (2009).
Here, the inventory policy indicates, as the judge stated, that “the officer shall make an inventory listing of personal items and valuables and that extends to all storage areas and compartments.” The policy further states: “[a]ll closed but unlocked containers should be opened, and each article inventoried individually.” Thus, by its terms, the inventory policy covered the coat left in the back seat of the car. Once Breeding lifted the coat and determined it contained a heavy object in the pocket on one side, that object too should have been inventoried.
The defendant contends that the police engaged in an investigatory search and not an inventory search. He further claims that even if the police had the right to conduct an inventory search, the search conducted here was excessive in scope because a valid inventory search would not have included the coat as it was a cold night and the defendant would not have left the coat in the car. The judge's findings support the conclusion that the officers were engaged in an inventory search of the unregistered car which could not be driven and needed to be towed. Moreover, the “fact that the searching officer may have harbored a suspicion that evidence of criminal activity might be uncovered as a result of the search should not vitiate his obligation to conduct the inventory.” Commonwealth v. Matchett, 386 Mass. at 510. See Commonwealth v. Baptiste, 65 Mass.App.Ct. 511, 517 (2006). As for the argument that the defendant would not have left the coat in the car, there are no findings to the effect that he requested the coat or sought to retrieve it.
2. Closing argument. The defendant contends that his counsel should have been allowed to argue in closing that the defendant falsely confessed that the coat was his because of his gang-affiliation obligations. As there was no evidence that the driver was a fellow gang member, we discern no abuse of discretion by the judge in disallowing this argument. See Commonwealth v. Murchison, 418 Mass. 58, 59–60 (1994) (“Counsel may argue from the evidence and may argue fair inferences that might be drawn from the evidence”).
3. Duplicative offenses. The defendant argues that his convictions for unlawful possession of ammunition and unlawful possession of a loaded firearm are duplicative because the only ammunition found was loaded in the firearm. The Commonwealth agrees. After review of the record, we concur. See Commonwealth v. Johnson, 461 Mass. 44, 51–54 (2011).
4. Motion for a new trial. We review the denial of a motion for a new trial for abuse of discretion or any other error of law. Commonwealth v. Lane, 462 Mass. 591, 597 (2012). As noted, the basis for the defendant's new trial motion was ineffective assistance of counsel. As the motion judge observed, to prevail on his claim, the defendant must show that defense counsel's performance demonstrated “serious incompetency, inefficiency, or inattention ... falling measurably below that which might be expected from an ordinary fallible lawyer” and, because of those deficiencies, the defendant was “likely deprived ... of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The judge concluded that the defendant did not meet his burden under either prong of the Saferian test. We agree.
The defendant first contends that trial counsel was ineffective for failing to submit a written memorandum or legal authority in support of the motion to suppress the firearm seized during the inventory search. However, that failure was of no import as defense counsel presented a thorough and thoughtful argument at the motion hearing. As there is no basis for concluding that the submission of a written memorandum of law or legal authority would have affected the outcome of the motion to suppress, the new trial motion was properly denied on this basis.
Second, the defendant faults trial counsel for not challenging the stop of the motor vehicle on the ground that the trooper engaged in unlawful racial profiling. There was no abuse of discretion in denying the new trial motion on this ground because, as the judge noted, the defendant failed to show that a motion based on this theory would likely have succeeded. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) (“It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success”). Here, after reviewing the entire record, including the statistical analysis provided by the defendant's experts, the judge concluded that “[t]he evidence at the suppression hearing and trial was that the vehicle was stopped for an unregistered plate, a race neutral reason. There was no evidence that the trooper was aware of the race of either occupant before the stop was made. Absent some evidence that race was a motivating factor in the stop, a motion to suppress based on racial profiling could not succeed.” Given these circumstances, trial counsel would have had no reason to suspect that the traffic stop was the product of racial profiling or that an investigation of this particular trooper's conduct regarding traffic stops would be worth investigating for racial profiling. Furthermore, the relevancy of this officer's statistical disparity regarding the giving of warnings versus citations, uncovered by the unusually diligent work of appellate counsel, is not at all clear in this case where the officer had no discretion to allow one of the unlicensed individuals to drive off in the unregistered car. See generally Commonwealth v. Lora, 451 Mass. 425 (2008).
Lastly, we discern no abuse of discretion in the judge's decision that an evidentiary hearing was not warranted. See Commonwealth v.. Candelario, 446 Mass. 847, 858 (2006). The materials submitted in support of the motion were detailed. Moreover, contrary to the defendant's assertion, the record reveals that the judge carefully reviewed and evaluated the statistical evidence.
In sum, we conclude that the findings of the motion judge are fully supported by the record and his application of the law governing the issues raised is correct.
On indictment 09–187–2, charging unlawful possession of ammunition without a firearms identification card, subsequent offense, the judgment is reversed, the verdict is set aside, and that indictment shall be dismissed. The remaining judgments are affirmed.
Order denying motion for new trial affirmed.