Opinion
No. 10–P–1862.
2012-06-20
COMMONWEALTH v. Derrel C. WEBB.
By the Court (KAFKER, BROWN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Derrel C. Webb, was convicted of unlawful possession of a firearm, in violation of G.L. c. 269, § 10( a ); possession of a firearm by an individual with prior convictions of two violent drug offenses, in violation of G.L. c. 269, § 10G( b ); and unlawful possession of a loaded firearm, in violation of G.L. c. 269, § 10( n ). On appeal, he argues primarily that the motion judge improperly denied his motions to suppress, and that the firearm possession statute violates his Second Amendment right to keep and bear arms and related rights. We affirm.
Exit order. The defendant does not challenge the legality of the stop, only the legality of the exit order. To justify an exit order we ask “whether a reasonably prudent [person] in the police [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger.” Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997) (citation omitted). Here, the officer observed the defendant's nervous behavior, his strange posture, and, most importantly, a long wooden handle—potentially a weapon—in plain view protruding from underneath the defendant's seat.
In these circumstances, the officer had reasonable grounds to justify the exit order. See Commonwealth v. Rivera, 67 Mass.App.Ct. 362, 365 (2006) (upholding exit order where police observed nervous behavior and handle of a police baton). Miranda waiver and voluntariness. The officer gave the defendant the warnings required by Miranda v.. Arizona, 384 U.S. 436 (1966), and even started the warnings over to ensure that he had the defendant's attention. The defendant acknowledged that he understood the warnings. Fifteen minutes after the warnings, the defendant made inculpatory statements to another officer. The defendant contends that the passage of time and trickery by the second officer show that Webb did not voluntarily waive his right to remain silent and that his statements were not voluntary.
There were also three people in the stopped car and only two officers.
The number of minutes elapsed here is not enough time for Miranda warnings to become stale, and the defendant has identified no authority to support his argument to the contrary. See Commonwealth v. Rivera, 441 Mass. 358, 366 (2004) (three hours and twenty minutes); Commonwealth v. Martinez, 458 Mass. 684, 693 (2011) (six hours between warnings and statement).
Any contention by the defendant that the second officer was also required to advise him of his Miranda rights does not rise to the level of reasoned appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Similarly unpersuasive are the defendant's arguments regarding the voluntariness of his statements. While the officer's comments to the defendant were cleverly designed to cause the defendant to make incriminating statements, that does not make the defendant's post-Miranda statements involuntary. See Commonwealth v. Forde, 392 Mass. 453, 455 (1984); Commonwealth v. Selby, 420 Mass. 656, 664 (1995). The officer's questions were neither coercive nor deceptive. In the totality of the circumstances present here, there can be no doubt that the defendant's statements were made voluntarily. There was no evidence to suggest that “the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.” Id. at 663.
Second Amendment claims. The Supreme Judicial Court has rejected the defendant's Second Amendment and related due process and equal protection claims. See Commonwealth v. Powell, 459 Mass. 572, 585, 589–590 (2011), cert. denied, 132 S.Ct. 1739 (2012); Commonwealth v. Gouse, 461 Mass. 787, 801–802 (2012). See also District of Columbia v. Heller, 554 U.S. 570, 626–627 (2008).
Other claims. The recordings of the defendant's jailhouse telephone calls were properly admitted, as he had no reasonable expectation of privacy in those calls. See Commonwealth v. Gomes, 459 Mass. 194, 206–207 (2011), and cases cited. Though the Commonwealth made a “procedural misstep” by failing to use Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979), to summons the third-party records, the defendant was not prejudiced, as he received adequate notice of the Commonwealth's intention to use the recordings and the Commonwealth provided copies of the recordings to defense counsel more than one year before trial. Suppression is not appropriate in these circumstances. See Commonwealth v. Odgren, 455 Mass. 171, 188–189 (2011).
The defendant's claim of ineffective assistance of counsel also fails for substantially the reasons stated in pages 29–35 of the Commonwealth's brief.
Judgments affirmed.