Com. v. Rupp

• Decision Date: 13 February 2003
• Docket Number: No. 01-P-1194.,01-P-1194.
• Citation: 57 Mass. App. Ct. 377,783 N.E.2d 475
• Parties: COMMONWEALTH v. Stephen RUPP.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

783 N.E.2d 475

57 Mass. App. Ct. 377

COMMONWEALTH v. Stephen RUPP.¹

No. 01-P-1194.

Appeals Court of Massachusetts, Suffolk.

Argued January 8, 2003.

Decided February 13, 2003.

Further Appellate Review Denied April 2, 2003.

COPYRIGHT MATERIAL OMITTED

Chauncey B. Wood for the defendant.

Christina E. Miller, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, SMITH, & MASON, JJ.

MASON, J.

On February 17, 1998, a grand jury returned a four-count indictment charging the defendant with possessing a firearm without a license, second offense, G.L. c. 269, § 10(d); receiving a firearm with a defaced identification number, G.L. c. 269, § 11C; unlawfully possessing ammunition, G.L. c. 269, § 10(h); and possessing marijuana, G.L. c. 94C, § 34.

Prior to trial, the defendant filed a motion to suppress the firearm and other evidence on the ground that, at the time they stopped him, the police did not have reasonable suspicion to believe that he was engaging in criminal activity. A Superior Court judge (motion judge) denied that motion after a hearing.

A jury trial was then held before a different Superior Court judge (trial judge). The jury found the defendant guilty of possession of a firearm and the other charged offenses and, following a separate bench trial, the trial judge found the defendant guilty of the charge of unlawfully possessing a firearm, second offense. The defendant was sentenced to a term of from five years to five years and one day in the State prison on the conviction for possessing a firearm, second offense, and to a concurrent term of two years in a house of correction on the conviction for possessing ammunition. The remaining two convictions were placed on file.

On appeal, the defendant claims that the motion judge erred in failing to suppress the firearm evidence and that the trial judge erred in allowing in evidence certain prejudicial hearsay testimony. He also claims that the prosecutor effectively lowered the Commonwealth's burden of proof during his closing argument and that he was entitled to a required finding of not guilty on each of the firearm counts. We affirm the convictions.

The suppression hearing. We summarize the findings of the motion judge, supplemented by uncontroverted testimony of Officer Kenneth Israel and of the other arresting officers, upon which the judge relied for his ruling.² See Commonwealth v. Willis, 415 Mass. 814, 816-817, 616 N.E.2d 62 (1993); Commonwealth v. Watson, 430 Mass. 725, 726 n. 5, 723 N.E.2d 501 (2000).

On October 21, 1997, at approximately 10:00 P.M., Officer Israel was on patrol in an unmarked police vehicle in the vicinity of Madison Park High School in the Roxbury section of Boston. Two other Boston police officers, David Singletary and Lawrence Celester, were riding with him. Each of the officers was in plain clothes.

At about 10:10 P.M., the officers received a radio report from the police dispatcher that two black males were standing next to a white Nissan Maxima automobile with Massachusetts registration number 8476BG in the rear parking lot of One Terrace Street in Roxbury, and that one was selling a gun to the other. The dispatcher radioed the report in response to a 911 call from a citizen who would not provide his or her name, but stated that he or she had observed the males engaging in the sale.³

Officer Israel immediately drove to the Terrace Street address and arrived there about a minute after receiving the dispatch. The buildings at the address are configured around a central parking area and there is a driveway leading into the area. Police officers previously had responded to reports of criminal activity occurring at the address, and it was known to be in a high crime area.

As Officer Israel was driving into the parking area, he and the other officers observed a white Nissan Maxima bearing registration number 8476BG parked with its trunk open. They also observed two black males standing at the rear of the car.

Officer Israel pulled into the parking lot and stopped his car between the driveway and the Maxima. He and the other officers got out and began to approach the two males. As they were doing so, one of the males, later identified as the defendant, bolted away after he or the other male had slammed down the trunk of the car. Officers Singletary and Celester immediately ran after the defendant, while Officer Israel apprehended the other male.

During the chase, Officer Celester saw the defendant attempting to throw something from his pocket, and he radioed for back-up help. Officer Singletary continued to run after the defendant and ultimately caught up with him after he had run behind a building on Tremont Street. Officer Singletary immediately pat frisked the defendant for weapons, but found none. At or about this same time, however, another police officer found a loaded nine millimeter handgun with an obliterated serial number on the roof of the building behind which the defendant had run immediately before he was caught. Officer Singletary placed the defendant under arrest and gave him Miranda warnings.

The officers brought the defendant back to the police station for booking. During the booking, a small bag of marijuana was found inside one of the defendant's shoes. Also, while officers were discussing among themselves that a gun had been found at the scene, the defendant stated to the officers that "I wasn't trying to sell the gun."

1. Suppression issues. In denying the defendant's suppression motion, the motion judge reasoned that the police had not seized the defendant until after he had begun his flight and that, at that time, the police had a reasonable suspicion that the defendant had committed or was committing a crime. See Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974); Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993). The judge found specifically that, prior to the defendant's flight, "there was no police show of authority ... which might convert an investigative encounter into a freedom restricting seizure."

The defendant contends that, for constitutional purposes, he was in fact seized before he had begun his flight because there was evidence that Officer Israel had stopped his car in such a way as to effectively block the Maxima from leaving the parking lot and, further, that Officer Israel had pulled out his gun and said "Don't move" as he was getting out of the car. The defendant further contends that, even if the police had not seized him before he began his flight, they still did not have reasonable suspicion after he had begun his flight that he had engaged or was engaging in criminal activity.

"`In reviewing the denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error.' Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), and cases cited. A judge's legal conclusion, however, `is a matter for review ... particularly where the conclusion is of constitutional dimensions. Commonwealth v. Jones, 375 Mass. 349, 354, 377 N.E.2d 903 (1978).'" Commonwealth v. Evans, 436 Mass. 369, 372, 764 N.E.2d 841 (2002).

While Officer Israel testified at the suppression hearing that he had stopped his car between the Maxima and the driveway leading into the parking lot, he also stated that he had stopped his car about twenty feet from the Maxima. He did not testify that he had even attempted to place his car in such a location as to prevent the Maxima from leaving the parking area, let alone come close to doing so. Contrast Commonwealth v. Bottari, 395 Mass. 777, 779, 482 N.E.2d 321 (1985); Commonwealth v. Sanderson, 398 Mass. 761, 766, 500 N.E.2d 1337 (1986).

Moreover, the only evidence at the suppression hearing that Officer Israel had drawn his gun and ordered the defendant and his companion not to move prior to the defendant's flight was the testimony of a citizen, Tawana Albert Pringle, who, at the time, was living with the defendant's companion in an apartment near where the incident occurred and who claimed she was present during the incident. The judge was not required to and did not credit this testimony, which was explicitly contradicted by the testimony of Officer Israel, who stated that the defendant began fleeing "spontaneously" at the time the officer was getting out of the car and before he had pulled out his gun or said anything. See Commonwealth v. Meehan, 377 Mass. 552, 557, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980).

In view of the testimony of Officer Israel and the other officers at the suppression hearing, we can discern no "clear error" in the motion judge's factual finding that the police had made no show of authority before the defendant commenced his flight. We further agree with his conclusion that the police had not otherwise stopped or seized the defendant before he commenced his flight. See Commonwealth v. Rock, 429 Mass. 609, 611-612, 710 N.E.2d 595 (1999). See also Commonwealth v. Pimentel, 27 Mass.App.Ct. 557, 561, 540 N.E.2d 1335 (1989) (presence of three officers not overwhelming).

We likewise reject the defendant's claim that, even after he began his flight, the police did not have reasonable suspicion to believe that he was engaging in criminal activity. While flight from the police is not alone enough to justify a reasonable suspicion, it may be considered with other factors. See Commonwealth v. Fisher, 54 Mass.App.Ct. 41, 44, 763 N.E.2d 1106 (2002), and cases cited. Here, the police had received a report from a citizen that the defendant and his companion were engaged in a gun transaction late in the evening in a high crime area and had confirmed with their own observations many of the details the citizen had provided. When combined with the defendant's precipitous flight at the first sight of the police, these circumstances were enough to give the police reasonable suspicion to believe not only that the...