Opinion
20-P-177
11-13-2020
COMMONWEALTH v. MICHAEL P. WILSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant, Michael P. Wilson, was found guilty of possession of a class B substance. On appeal, he contends that the judge erred in denying his pretrial motion to suppress evidence, and that one of the jury instructions was error, thereby creating a substantial risk of a miscarriage of justice. We affirm.
Background. We summarize the facts from the judge's findings and ruling on the defendant's motion to suppress. We delineate additional facts in the discussion section below.
On May 11, 2016, Sergeant John Kiley of the Massachusetts State Police observed a motor vehicle drive onto a "restricted triangle, cut in front of . . . other vehicles, and [speed] onto Route 95." Sergeant Kiley turned on the blue lights of his police cruiser and pursued the motor vehicle. During the pursuit, he observed the occupant of the front passenger seat -- subsequently identified as the defendant -- "look back at him, and that he and [the driver] were both leaning forward and towards one another." The motor vehicle then stopped in the right travel lane of the road. For safety reasons, Sergeant Kiley "engaged his public address system" to tell the driver "to move down the ramp to avoid being hit." The motor vehicle moved down the ramp, "and then made a right hand turn." The motor vehicle then "continued on" for more than a mile, despite the availability of "a number of spots" that the motor vehicle "could readily and safely have stopped at." As he followed the motor vehicle, Sergeant Kiley again saw the two occupants "lean towards one another . . . . The men's furtive movements were consistent with concealment, made the sergeant uncomfortable, and prompted his calling for backup."
Sergeant Kiley approached the driver's side door. He found the driver to be "evasive, stammering, and argumentative." Sergeant Kiley ordered the driver out of the vehicle and patted him down. He found a large amount of cash on the driver's person. Concerned about the possibility of concealed weapons, he asked the defendant to exit the vehicle via the driver side door. As Sergeant Kiley began to pat frisk the defendant, another trooper saw two orange colored squares of paper fall to the ground from the defendant's waistband area.
A forensic scientist subsequently tested the squares, and testified at trial that they contained a class B controlled substance.
Discussion. 1. Exit order. The defendant argues that the officers lacked a sufficient basis to justify the order to exit the motor vehicle. The standard for an exit order in Massachusetts is well settled. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 37-38 (2020). The Supreme Judicial Court has made it clear that a reasonable suspicion that an occupant or occupants of a vehicle are armed is not a necessary predicate for a valid exit order. Id. at 38-39. Rather, an exit order is valid when, among other reasons, "police are warranted in the belief that the safety of the officers or others is threatened." Id. at 38. When reviewing an exit order, "we ask 'whether a reasonably prudent [person] in the [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. Santana, 420 Mass. 205, 212-213 (1995), quoting Commonwealth v. Almeida, 373 Mass. 266, 271 (1977). "[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order . . . based on safety concerns, and, if the basis is there, a court will uphold the order." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999).
The defendant does not challenge the patfrisk on appeal. Instead, he argues that because the exit order was not justified, any evidence obtained from the patfrisk must be suppressed as "fruit of the poisonous tree." Commonwealth v. Damiano, 444 Mass. 444, 453-454 (2005), citing Wong Sun v. United States, 371 U.S. 471, 487-488 (1963).
In the present case, relevant safety concerns justified the exit order. The judge found that the driver of the motor vehicle ignored Sergeant Kiley's order to stop, and continued to drive away for over one mile. The defendant and the driver made "furtive movements," which included leaning forward and leaning toward one another on multiple occasions as they drove away from the police cruiser. The furtive gestures "were consistent with concealment" according to the judge. The judge also credited Sergeant Kiley's testimony that in light of his observations he had concerns for his safety, and that those concerns were "reasonable." Sergeant Kiley's concerns elevated in light of the driver's evasive and argumentative behavior. See Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 743-744 (2018); Commonwealth v. Vazquez, 74 Mass. App. Ct. 920, 923 (2009). We discern no error in the judge's findings, and thus no error in the denial of the motion to suppress.
2. Jury instruction. The defendant contends that the judge erred in instructing the jury to the effect that there was no evidence that the defendant had legal authority to possess a controlled substance. More specifically he claims that (1) the instruction should not be given in cases where a defendant is only charged with possessing a controlled substance, and (2) there was evidence in the present case that the defendant did have a prescription that provided legal authority to possess the class B substance. As the defendant did not object to the instruction at trial, we review to determine whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The judge instructed the jury, in relevant part, as follows:
"In this case there is no evidence before you to suggest that the [d]efendant may have had legal authority to do what he is charged with doing on the grounds that he allegedly held a prescription to possess Suboxone [the class B controlled substance]. Since there was no evidence on that question, you are not to consider it. Please put it out of your minds since it is not an issue in this case."
The record reflects that the defendant admitted that at the time of the offense he did not possess a prescription to possess the controlled substance. It was neither relevant nor material to the defense that the defendant claimed to have obtained a prescription on a date following his commission of the crime. Thus the instruction could not have created a substantial risk of a miscarriage of justice.
At trial, the defendant testified that "there's a process" for obtaining a prescription and that there is a "bridge" for obtaining a prescription for the substance that he possessed. On further examination, he clarified that he "had [his] prescription not even a week after [the offense]," and admitted that he had no prescription on the date of the offense.
We note that pursuant to G. L. c. 278, § 7, "[a] defendant in a criminal prosecution, relying for his justification upon a license . . . or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized." We further note that in the present case, the judge's instruction tracked the language of the model jury instruction. See 3 Model Jury Instructions for Use in the District Court 3.160 (2016). See also Commonwealth v. Cabral, 443 Mass. 171, 180 n.18 (2005).
Judgment affirmed.
By the Court (Wolohojian, Neyman & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 13, 2020.