Com. v. Martin

• Decision Date: 15 January 2009
• Docket Number: No. 07-P-1411.,07-P-1411.
• Citation: 899 N.E.2d 869,73 Mass. App. Ct. 526
• Parties: COMMONWEALTH v. Jamal MARTIN.
• Court: Appeals Court of Massachusetts

899 N.E.2d 869

73 Mass. App. Ct. 526

COMMONWEALTH v. Jamal MARTIN.

No. 07-P-1411.

Appeals Court of Massachusetts, Suffolk.

Argued September 11, 2008.

Decided January 15, 2009.

Pamela Symmes Segre, Cambridge, for the defendant.

Kristin Lombard O'Donnell, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, BROWN, & MEADE, JJ.

KAFKER, J.

Obviously false answers and nervous behavior by the defendant, Jamal Martin, during a brief street encounter with police led an officer to ask if he had any weapons. When the defendant failed to answer, the officer attempted to pat frisk him. The defendant pushed the officer's hands away but the officer continued with the frisk and discovered a loaded handgun. The defendant was convicted in a jury-waived trial of unlawful possession of a firearm in violation of G.L. c. 269, § 10(a); possession of a loaded firearm in violation of G.L. c. 269, § 10(n); and assault and battery on a police officer in violation of G.L. c. 265, § 13D.¹ On appeal, he challenges his convictions on the ground that the motion judge improperly denied his motion to suppress evidence that he claims was the fruit of an illegal patfrisk. He also contends that the trial judge (who was not the motion judge) erred by admitting ballistics certificates at trial and excluding exculpatory evidence to rebut them. For the reasons set forth below, we affirm the defendant's convictions.

1. Motion to suppress. The motion judge made the following relevant findings of fact. On October 8, 2006, around 10:30 A.M., Boston police Officer Ismael Henriquez and his partner were patrolling the Woodrow Avenue area of the Dorchester section of Boston, a high crime area where Officer Henriquez had previously participated in drug and firearm arrests. The officers, who were wearing plain clothes and driving an unmarked car, were attempting to execute a warrant for the arrest of a juvenile who lived in the neighborhood. In the process, they saw a young man, the defendant, wearing a sweatshirt with a hood pulled up around his face. The defendant was walking toward Woodrow Avenue. While they could not see his face, the officers thought that the defendant might be the juvenile they were looking for.

They made a U-turn and drove next to the defendant, who ignored them. At this point, the officers still could not see his face. They rolled down the window, identified themselves as police officers, and asked the defendant his name. After some hesitation he replied, "Jamal Daly," which was not the name of the juvenile they were seeking. Also, the defendant was taller and stockier than that juvenile.² The officers asked the defendant for his birth date. He told them it was "September, 1987." They then asked him how old he was and he replied, "Seventeen." Because the age and date did not match,³ the officers believed the defendant was lying about at least one of his answers.

At that point, Officer Henriquez stepped out of the vehicle and approached the defendant while his partner remained in the car. The defendant was nervous and took a few steps backward. Officer Henriquez could now see the defendant's face and knew he was not the wanted juvenile. The officer then asked the defendant if he had any weapons. When the defendant did not answer, Officer Henriquez attempted to pat frisk him.⁴ The defendant pushed the officer's hands away. Officer Henriquez told the defendant to calm down and continued with the frisk, during which he felt a hard object that turned out to be a loaded gun. Officer Henriquez handcuffed the defendant and arrested him. While booking him, the police allowed the defendant to make a telephone call, during which they overheard him say that he had "just been locked up for the gun I found." Additional facts from the record will be set forth as necessary.

The defendant argues on appeal that the judge improperly denied his motion to suppress evidence that he claims was the fruit of an illegal patfrisk. Prior to trial, the defendant made a motion to suppress the gun and bullets seized by the police and the statement he made during booking. The defendant argued that the police had no constitutional basis to search him. After an evidentiary hearing on December 11, 2006, a Boston Municipal Court judge denied the motion. The judge determined that the police had no constitutional basis to search the defendant prior to the defendant's pushing Officer Henriquez's hands away, but concluded that the push "provided probable cause to arrest the defendant for the crime of assault and battery." The judge observed that "[i]f suspects were legally permitted to resist searches or arrests they believed illegal, chaos and violence would supplant the rule of law." The judge further observed that, once there is probable cause to arrest, the police "may search a suspect for weapons or for evidence of the crime for which the arrest is made."

In reviewing a motion to suppress, the judge's findings of fact are "binding in the absence of clear error." Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824 (1995). However, we "independently review[ ] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Gentile, 437 Mass. 569, 573, 773 N.E.2d 428 (2002), quoting from Commonwealth v. Eckert, 431 Mass. 591, 593, 728 N.E.2d 312 (2000). While we affirm the judge's ruling, we do so on different grounds.⁵ See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997) ("An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings").

Based on the judge's factual findings we conclude that the defendant was not seized until the officer attempted the patfrisk. At that point the officer had a legitimate reason for being in the immediate proximity of the defendant and a reasonable belief that the defendant was armed and dangerous. Therefore, the motion to suppress the gun and ammunition found pursuant to the patfrisk was properly denied.

"A person is seized by the police only when, in light of all of the attending circumstances, a reasonable person in that situation would not feel free to leave." Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007). In the instant case, the officers approached in an unmarked vehicle, without activating blue lights or sirens. Contrast Commonwealth v. Smigliano, 427 Mass. 490 491-492, 694 N.E.2d 341 (1998) ("a reasonable person, on the activation of a police car's blue lights, would believe that he or she is not free to leave"). While there were two officers present, only Officer Henriquez stepped out of the vehicle and he did not obstruct the defendant's movement. Compare Commonwealth v. DePeiza, 449 Mass. at 370, 868 N.E.2d 90 (no seizure even where two officers stepped out of the car and stood on each side of the defendant). Also, neither officer ordered the defendant to stop or to answer the questions he posed. See ibid. (relying in part on the fact that the officers did not order the defendant to stop or to answer their questions in concluding there was no seizure). Contrast Commonwealth v. Barros, 435 Mass. 171, 172, 176, 755 N.E.2d 740 (2001) (defendant was seized when an officer approached the defendant after he ignored a request to talk and then said, "Hey you. I wanna talk to you. Come here"). Nor did the officers draw their weapons or touch the defendant prior to the patfrisk. See Commonwealth v. Pimentel, 27 Mass.App.Ct. 557, 560, 540 N.E.2d 1335 (1989) (explaining that "the display of a weapon by an officer [and] some physical touching of the person of the citizen" are examples of additional circumstances that support a finding of a seizure).

In this context, the questions that followed the officers' approach regarding name, age, and date of birth did not constitute a seizure. See 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 an officer approached the defendant in a public parking lot and asked questions about his identity); Commonwealth v. DePeiza, 449 Mass. at 370, 868 N.E.2d 90 (no seizure when officers asked for identification and held it during a "brief conversation"). The Supreme Judicial Court has recognized that "the police do not effect a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe he was not free to turn his back on his interrogator and walk away." Commonwealth v Fraser, 410 Mass. 541, 544, 573 N.E.2d 979 (1991). See Commonwealth v. Murdough, 428 Mass. 760, 763, 704 N.E.2d 1184 (1999) ("officers may make inquiry of anyone they wish ... so long as they do not implicitly or explicitly assert that the person inquired of is not free to ignore their inquiries").

Although more significant, the additional question whether the defendant had a weapon is likewise not enough in these circumstances to seize the defendant. In Commonwealth v. Fletcher, 52 Mass. App.Ct. 166, 170, 752 N.E.2d 754 (2001), after observing "three men who were engaging in the disorderly and unorthodox conduct of pounding on the side of a stopped bus in a public transit station crowded with people during the evening rush hour commute," an officer called the men over to talk to him, and as they approached he asked them if they had any weapons. When they did not answer, he pat frisked them. Id. at 167, 752 N.E.2d 754. In that case, we concluded that "stopping and stepping out of a cruiser that was properly patrolling a public transit station, calling over to the men, approaching them, and asking about a weapon ... did not constitute a stop or seizure."⁶ Id. at 170, 752 N.E.2d 754. See United States v. Lockett, 406 F.3d 207, 209, 211 (3d Cir.2005) (no seizure where officers told the defendant ...