Com. v. Laaman
| Decision Date | 30 March 1988 |
| Docket Number | No. 87-431,87-431 |
| Citation | 25 Mass.App.Ct. 354,518 N.E.2d 861 |
| Parties | COMMONWEALTH v. Jaan LAAMAN. |
| Court | Appeals Court of Massachusetts |
Carol A. Donovan, Committee for Public Counsel Services, Boston, for defendant.
Dana A. Curhan, Asst. Dist. Atty., for Com.
Before GREANEY, C.J., and KAPLAN and FINE, JJ.
There was a "shootout"--an attack on two State troopers--at a rest area in North Attleborough in the early morning of February 7, 1982. Christopher King was arrested on the spot and later was tried and convicted of eight firearms charges. 1 Although King was carrying a weapon on his person, he did not fire it. His companion, who did the actual shooting, escaped the scene. Jaan Laaman, the present defendant, believed to be that companion, was apprehended nearly three years later as the result of an FBI raid in Cleveland. Returned to Massachusetts, he has been tried and convicted of two counts of armed assault with intent to murder, of unlawfully carrying a firearm on his person, and of three counts of unlawfully carrying a firearm under his control in a motor vehicle. He appeals, and contends that the judge erred in failing to suppress an identification and certain physical evidence. 2 These matters were heard at pretrial voir dire, and we have the benefit of the judge's findings and conclusions. Holding against the defendant's contentions, we affirm the convictions.
1. Voir dire. The findings with amplification from the record yield an account as follows. 3 About 2:00 A.M. on February 7, 1982, with the weather cold and clear, State Trooper Paul Landry, driving in his cruiser No. 320 on the southbound side of route 95, reached a rest area in North Attleborough near the Rhode Island line. Observing a parked green Plymouth station wagon, Landry entered the rest area and positioned the cruiser so that its high beams illuminated the driver's side of the wagon. It was regular practice, in accordance with a written directive for "Patrol A," Landry's unit, for troopers in the winter months to approach all stopped or parked cars in such areas and make appropriate inquiries--whether the car or any occupant was in distress, where the car was headed, and so forth. 4 Following this procedure, Landry approached the driver and had a conversation with him, first noticing that the engine was on, the headlights and interior light off, the driver a white man and the other occupant a black man in the passenger seat, 5 a green bag on the floor near the passenger's feet, a large dog pacing in the rear of the wagon. Responding to questions, the driver said they were all right, were resting, had come from New Hampshire and were going to New York. During the talk, Landry observed the passenger moving his right hand inside his jacket just above his waistline and keeping it there. Both men appeared nervous. Landry asked for identification and car registration; the driver handed him a New York driver's license with a photograph stapled to it; the passenger handed the driver, and the driver handed Landry, a New York driver's license having no picture attached; the passenger took a registration from the glove compartment and it was passed to Landry. Folding the registration in his hand, Landry asked who owned the wagon. The driver replied, Lucinda Keith (this name appeared on the registration form). This woman, he said, was his girl friend and lived in Cambridge, Massachusetts; asked what was her telephone number the driver could not respond, although he said he had known her for two years.
Uneasy and suspicious, Trooper Landry returned to his cruiser, repositioned it a little to the rear of the station wagon but still illuminating it, and put in a call for a "missing and wanted" check on the names appearing on the licenses--"Salvatore J. Bella" on the driver's license, which had expired, and "Lester Jordan" on the passenger's license--and for confirmation of the registration. During a five minute interval awaiting reply, Landry examined the stapled picture (wondering why no picture was attached to the other license) and settled in his own mind that the picture corresponded with the appearance of the driver he had just seen. Radio reported there was nothing outstanding on Bella or Jordan, and there was no information about the registration (which might mean that it was too recent for the computer, or there was a computer mixup or fault, or the registration was fabricated). Landry, particularly concerned about the passenger's movement to his jacket, took the unusual step--unusual where the radio return was neutral--of calling for backup. There was immediate response from Trooper Michael Crosby, who was in a cruiser nearby.
On arrival, Crosby placed his cruiser No. 329 alongside No. 320 with his high beams directed to the driver's side of the station wagon. He left his cruiser and had thirty seconds of conversation with Landry. Landry said he thought the passenger might be carrying a weapon or drugs. The two troopers went to the passenger's window of the wagon. Landry noticed that the green bag was not there. He tapped on the window with his flashlight and asked the passenger to step outside. The passenger did so. Landry asked what he had inside the jacket and attempted to put his hand there. The passenger repelled his hand. Landry told the passenger to put his hands on his head, and then, thrusting inside the jacket, felt a bulletproof vest. He called out to Crosby that the guy had something--watch the driver. As the passenger made a movement to the inside of the jacket, Landry drew his service revolver.
Just then, the driver opened his door and began a crouching "duck walk" on his side of the wagon (perhaps best observed by the witness Nobrega; see below). The driver appeared at the rear right bumper and opened fire in the direction of the troopers. Landry had taken the passenger by the back collar; he held the passenger ahead of him and with his weapon returned fire, then brought the passenger to the ground. Crosby scurried to a dumpster nearby, there were shots apparently in his direction, then he dived into his cruiser, where he radioed for help. The driver had fled into the nearby woods. When officers arrived, Landry gave them a short description of the man, and a search began. Landry meanwhile had taken a gun--a .9 millimeter automatic pistol with live rounds--that the passenger carried in his waistband; the passenger was handcuffed and removed to the Foxborough barracks. 6
There was another witness to the incident. William H. Nobrega, driving a tractor-trailer gasoline tanker on his way back from Bellingham to his home base, pulled into the area in order to do some paperwork and record a remaining partial load of gas. He drew up behind the station wagon, on whose driver's side a police cruiser was shining its high beams. Nobrega began to watch closely when a second cruiser arrived. He saw the two troopers conversing and moving to the passenger side of the station wagon. Then he saw the driver, in the full illumination, sliding out of the car, his left hand still on the driver's wheel as the door opened. The driver crept in a duck walk along the side of the wagon and thus was approaching in Nobrega's line of sight. As the driver reached the rear of the wagon and stood up, with gun in hand, Nobrega had a clear view of him. The continuous observation extended for ten to fifteen seconds. After the shooting, Nobrega had another clear view, eye to eye, when the driver appeared, for a like period of time, near the rear of Crosby's cruiser No. 329. Nobrega said he was anxious about a possible shot at his tanker or being himself taken hostage, and he was paying intense or concentrated attention. Just after the shooting, Nobrega backed up; before leaving the scene he used his two-way radio to try to get word to the troopers' Foxborough barracks; he left the area when reinforcements arrived.
Trooper Landry described the driver to Trooper William Coulter who arrived at the scene, and later at the Foxborough barracks a number of times for the benefit of interested officers. These included FBI agents who thought the driver might be associated with a coterie of which one member, Richard Charles Williams, figured as a suspect in the recent murder (December 21, 1981) of a New Jersey State trooper. Landry described the driver thus: white male, wearing green jacket and dark pants, 200 pounds, long brown hair, stocky chest; face--olive complexion, sunken dark eyes, several moles. 7 He emphasized that the moles would be telltale. Landry was certain the picture attached to the Bella license was that of the driver, although he noted differences in the hair or hair style. He was shown other pictures which came from those found in the station wagon (see note 6) and it appears that he said a few of them were of the driver.
Nobrega appeared at Foxborough barracks around 5:00 A.M. He had spoken to police officers at Pawtucket, Rhode Island, and had been advised to report to Foxborough. His description of the driver, given to a Pawtucket officer, and later at the barracks, was: white male, five feet, ten inches, 200 pounds, green autumn type jacket, dark trousers, light brown, wavy hair, a rugged young man in good condition with bulk around the chest. Nobrega said he was shown two pictures, one of them the Bella license picture; he immediately identified the latter as the driver. (The judge found that Nobrega was shown additional pictures and made further identifications of the driver, but the record is unclear.)
At some point on February 7, the fact was confirmed that the passenger was not "Lester Jordan" but Christopher King. King told the officers that the driver was Jaan Laaman.
In late afternoon, February 7, special agent Richard Slowe of the FBI called on Dennis Curzi in East Boston. Curzi was the brother of Barbara Curzi, who...
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