Com. v. Rock

• Decision Date: 26 May 1999
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Edker ROCK.

Page 595

710 N.E.2d 595

429 Mass. 609

COMMONWEALTH v. Edker ROCK.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 2, 1999.

Decided May 26, 1999.

Frances L. Robinson for the defendant.

Joseph M. Makalusky, Assistant District Attorney, for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, FRIED, & IRELAND, JJ.

ABRAMS, J.

The defendant, Edker Rock, appeals from his convictions of murder in the first degree and unlawful possession of a firearm. ¹ G.L. c. 265, § 1. G.L. c. 269, § 10 (a ). We affirm the convictions. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant on the conviction of murder in the first degree.

On the night of the murder, two police officers were covertly observing a street corner in anticipation of drug sales. The officers saw a man, later identified as the codefendant Jeffrey Jones, approach the street corner. The officers heard a gunshot and saw that a man was felled. The codefendant fled to a vehicle, which was standing with the engine running, passenger door open, lights off, and a driver inside. The vehicle sped away. A witness saw the vehicle and the registration plate and gave the information to the police. The officers relayed the information about the shooting over the radio.

The night of the shooting, other police officers were in the area, including two plainclothes officers patrolling in an unmarked vehicle. The officers heard radio calls about the shooting and, within ten minutes of the shooting, saw two males, the defendant and the codefendant, running. The officers followed in the unmarked cruiser, caught up to the men and asked, "Guys, can I talk to you for a second?" The officers got out of their vehicle. The men appeared nervous and one of the officers saw a bulge under the defendant's shirt. A patfrisk was conducted, a gun was recovered, and the two were arrested. One of the officers who had been observing the corner at the time of the shooting arrived and identified the codefendant as the shooter. The suspects were brought to the scene of the crime and identified by several witnesses as having been involved in the crime. At the time of arrest, the defendant made several inculpatory statements.

The defendant moved to suppress certain evidence based on a claim that the police unlawfully stopped him and conducted an unnecessarily suggestive identification. ² The motion was denied. After a jury trial, the defendant was convicted of murder on a theory of deliberate premeditation. The Commonwealth's theory was that the defendant was engaged in a joint venture. He now appeals. ³

1. Stop of the suspects. The defendant contends that the motion judge erred in denying the motion to suppress. According to the defendant, the officers effectuated a seizure by pursuing the defendants in the police cruiser, and that seizure was not founded on reasonable suspicion. We disagree.

"[A] pursuit, which, objectively considered, indicates to a person that he would not be free to leave the area (or to remain there) without first responding to a police officer's inquiry, is the functional equivalent of a seizure, in the sense that the person being pursued is plainly the object of an official assertion of authority, which does not intend to be denied, and which infringes considerably on the person's freedom of action." Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996). However, "not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification." Id. Rather, a person is "seized," "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 786, 665 N.E.2d 93, quoting Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985).

The motion judge found the following. The officers were driving an unmarked cruiser when they turned to follow the defendants. They did not activate the cruiser's blue lights or sirens. The officers followed the defendants for 150 feet until the defendants voluntarily stopped running. One officer left the cruiser, identified himself, and said, "Guys, can I talk to you for a second?" One officer stepped between the two defendants.

We conclude that this pursuit did not rise to a seizure because a reasonable person would have believed he was free to leave at the time the officers followed the defendants and at the time the defendants stopped to talk to the officers. See Stoute, supra. Approaching in an unmarked cruiser, leaving the cruiser, and requesting to speak with a citizen, without more, does not constitute a seizure. See id. at 789, 665 N.E.2d 93 (court assumed no seizure where officer said, "hold up a minute"); Commonwealth v. Williams, 422 Mass. 111, 116-117, 661 N.E.2d 617 (1996) (no seizure where police followed running defendant in their cruiser as police conduct would not have communicated to the reasonable person an attempt to capture or otherwise intrude on the defendant's freedom of movement); Commonwealth v. Thinh Van Cao, 419 Mass. 383, 388, 644 N.E.2d 1294, cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995) (no seizure where officer approached and asked questions about identity in unconfined public space, and did not indicate that subjects could not terminate encounter).

We disagree with the defendant's contention that "pursuit here began when [the officers] turned their cruiser the wrong way up a one way street with the stated intention of stopping the two [defendants]." See Williams, supra. The fact that the officers turned the wrong way does not necessitate a conclusion that a reasonable person would feel he was not free to leave. See Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 559-561, 633 N.E.2d 1058 (1994) (no pursuit where officer drove unmarked cruiser across opposing traffic lane at forty-five degree angle at normal pace). Further, the officers' intent to stop the defendants, absent any outward manifestation of that intent, is not relevant to whether a reasonable person would feel he was free to leave.

We turn to the seizure of the weapon and the subsequent arrest. At some point after the officers left the cruiser, one of the officers patted the defendant down and removed a gun from his clothing. The defendant correctly asserts that the officer effectuated a search when he performed the patfrisk. However, the defendant is incorrect when he claims that this search was improper.

A patfrisk must be supported by a reasonable belief, based on specific and articulable facts, that the defendant was armed and potentially dangerous. See Commonwealth v. Wing Ng, 420 Mass. 236, 237-239, 649 N.E.2d 157 (1995). The judge found that when the officers left the cruiser, they observed that the defendants were sweating, nervous, breathing heavily, and looking at each other and in all directions. The defendant kept moving so as not to allow the officers to see his right side. One of the officers saw a pronounced bulge protruding under the defendant's shirt in the rear right hip area. The officer knew that a shooting had just occurred in the vicinity, that weapons were often concealed in the hip area, and that they had seen the defendants at approximately 11 P.M., running in a high crime area. These facts objectively supported a reasonable belief that the defendant was armed and thus potentially dangerous. See id. Thus, the patfrisk was warranted and the evidence gathered subsequent to the search was properly admitted. ⁴

2. Juror dismissal. On the fifth day of trial and before deliberations, the judge informed counsel that a matter had come to his attention during recess and that he was going to inquire of one of the jurors outside the presence of the jury. In response to questions, the juror stated that he had met an acquaintance on a bus and told the acquaintance he was a juror. The juror denied having told the acquaintance that he smoked marijuana in order to stay awake during the proceedings. The judge then questioned the victim's sister. She stated that she was riding an MBTA train on the previous Friday and that she heard the juror say that he had to smoke marijuana in order to stay awake at trial. Over defense counsel's objection, the judge dismissed the juror.

The defendant contends that the judge's decision to dismiss the juror requires reversal because "there was no legitimate basis for the Court's action." ⁵ According to the defendant, there was no showing in the record that the juror was unable to perform his duty as a juror, Commonwealth v. Connor, 392 Mass. 838, 847, 467 N.E.2d 1340 (1984), and the allegation of the victim's sister was insufficient to justify the judge's decision. The defendant, noting that the juror was the only young black male on the jury, asserts that the dismissal caused a "real and unique" loss which denied the defendant his right to a jury of his choosing.

"The court shall have the discretionary authority to dismiss a juror at any time in the best interests of justice." G.L. c. 234A, § 39. In making his ruling, the judge implicitly accepted the testimony of the witness and rejected the testimony of the juror, stating "what [the juror] has denied and the other [person] has testified to causes me concern."

Both the Commonwealth and the defendant are entitled to a sober, conscious jury. See Commonwealth v. Keaton, 36 Mass.App.Ct. 81, 87, 628 N.E.2d 1286 (1994) (acknowledging that right to fair trial is placed in jeopardy if juror sleeps through testimony and noting that it is incumbent on judge to ensure that all jurors hear evidence). Where a judge has seen and heard a witness, the judge determines credibility. If a judge, after evaluating credibility, believes testimony that a juror is using drugs during the course of a trial, the judge has discretion to remove that juror.

3. Prejudice from impermissible statements. According to the...