Opinion
11-P-234
04-17-2012
COMMONWEALTH v. ALPHONZO WESLEY.
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
On appeal from convictions of carrying a firearm without a license, possession of ammunition without a firearm identification card, carrying a loaded firearm without a license, and possession of crack cocaine with intent to distribute, the defendant claims that his motion to suppress should have been allowed and that there was insufficient evidence to prove that he possessed crack cocaine with the intent to distribute. We find no merit in these arguments; however, we vacate the defendant's conviction of possession of ammunition sua sponte, because it is duplicative of the charge of carrying a loaded firearm.
1. Motion to suppress. a. Facts. On February 2, 2010, at around 1:00 A. M., Boston police Officer Joseph McDonough was driving a marked cruiser near the Dudley bus and train station, when he saw three men standing in front of a bench. The officer knew that activity involving firearms, drugs, and gangs was associated with this location, and that prior to his shift, there had been a shooting just two blocks away.
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).
After the three men stared at the officer for about a minute, the officer engaged them in casual conversation. The defendant and one of the other men said that they were 'just chilling' and 'we're good,' but the third man avoided eye contact and appeared nervous. The defendant later stated that they were waiting to catch a bus, at which point the third man leaned back and stretched, exposing a knife clipped to his belt. The officer asked the third man about the knife, and the third man denied having one. The officer then said, 'Look, I'm just going to get out and check you out. Something's wrong.' The judge found that this remark was not directed to the defendant.
As the officer began to get out of the cruiser, the defendant suddenly turned and ran away at a full sprint. The officer followed, observing the defendant clutching his left side as he ran. After the defendant ran behind some parked cars and briefly was out of sight, the officer found him crouched near the front of a white van. Believing the defendant had a weapon and may have discarded it near the van's tire, the officer drew his firearm and ordered the defendant to stop, which he did.
The officer conducted a patfrisk for weapons, and found none. Another officer, Stephen Dodd, arrived and also performed a patfrisk, during which he felt a rock-like substance in the defendant's pocket, which Officer Dodd believed to be rock cocaine. Six individually wrapped bags of crack cocaine were recovered from the defendant's pocket, totaling .86 grams. Officer Dodd handcuffed the defendant and gave him Miranda warnings. A third officer discovered a loaded firearm next to the white van.
b. Discussion. The judge did not err in determining that the defendant was not seized in a constitutional sense until ordered to stop by Officer McDonough. A defendant is seized by police 'only when, in light of all the attending circumstances, a reasonable person in that situation would not feel free to leave.' Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). Contrary to the defendant's arguments, he was not seized when Officer McDonough stepped out of his cruiser; nor was he seized when the officer pursued after him after he fled. See Commonwealth v. Franklin, 456 Mass. 818, 823 (2010); Commonwealth v. Powell, 459 Mass. 572, 577-578 (2011).
The defendant.s argument disregards the judge's explicit finding that the officer's statement that he was going to get out of the cruiser to 'check you out,' was not directed to the defendant. As far the defendant was concerned, the officer 'had not exercised any show of authority or commanded the defendant to stop; and . . . had not blocked or impeded the defendant's path. It was not until [the officer] drew his weapon, pointed it at the defendant, and commanded the defendant to [stop], that a seizure occurred.' Commonwealth v. Powell, supra at 578. By that point, there was ample basis for reasonable suspicion, including the defendant.s sudden flight, his clutching his side as if to hold a firearm stuck in his pants, and his crouching down as if to hide an unlicensed weapon or other contraband.
2. Sufficiency of the evidence of intent to distribute. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 671-672 (1979), the evidence, including the expert testimony of Detective William Donga, was sufficient for the jury to infer intent to distribute. Of relevance was the evidence that the defendant was first seen at 1 A. M. with two companions at a place known by police as a location for distributing crack cocaine; that he possessed six individually packaged bags of crack cocaine but no paraphernalia associated with smoking it; and that he was carrying a loaded firearm.
In assessing the sufficiency of the evidence, we do not take into account Detective Donga.s testimony that '[n]ormally crack users are very thin, gaunt looking, unkept, disheveled looking, yellow teeth and not very healthy looking,' and that '[l]ooking at the defendant, he doesn't appear to be a crack user.' Although the defendant has not argued the point on appeal and did not object at trial, this testimony was impermissible. 'Expert testimony may not be admitted to profile or describe the typical attributes of the perpetrators of crimes.' Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 644 (1997). See Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 671 (1998). Given the strength of the other evidence, however, we discern no substantial risk of a miscarriage of justice. Compare Commonwealth v. Day, 409 Mass. 719, 725-726 (1991) (profiling evidence admitted over objection, held to be prejudicial error where identity of perpetrator was at issue).
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3. Duplicative convictions. Although the issue was not raised, we vacate as duplicative the defendant's conviction for possession of ammunition under G. L. c. 269, § 10(h), because the only ammunition forming the basis for this charge was the ammunition found in the loaded firearm, and the defendant also was convicted of carrying a loaded firearm without a license. See Commonwealth v. Johnson, 461 Mass. 44, 51-52 (2011). There is, however, no need for resentencing because the sentence imposed by the judge on the lesser included offense of unlawful possession of ammunition did not increase the overall amount of time the defendant would spend incarcerated. See id. at 54 n.12. 4. Conclusion. On the charge of unlawful possession of ammunition, the judgment is vacated, the verdict is set aside, and that count of the complaint is to be dismissed. All of the remaining judgments are affirmed.
So ordered.
By the Court (Cohen, Green & Graham, JJ.),