Com. v. Valentin, 01-P-1334.

• Decision Date: 29 August 2002
• Docket Number: No. 01-P-1334.,01-P-1334.
• Citation: 55 Mass. App. Ct. 667,774 N.E.2d 158
• Parties: COMMONWEALTH v. Elias A. VALENTIN.
• Court: Appeals Court of Massachusetts

Page 158

774 N.E.2d 158

55 Mass. App. Ct. 667

COMMONWEALTH v. Elias A. VALENTIN.

No. 01-P-1334.

Appeals Court of Massachusetts, Norfolk.

Argued June 24, 2002.

Decided August 29, 2002.

Jennifer H. O'Brien, Lowell, for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

Present: GREENBERG, RAPOZA, & MASON, JJ.

MASON, J.

As a result of the police being led on a high-speed car chase on Route 95 from Providence, Rhode Island, to Canton, Massachusetts, during the early morning hours of Sunday, August 13, 2000, a complaint issued against the defendant from Stoughton District Court. The complaint charged the defendant with refusing to identify himself while operating a motor vehicle, operating a motor vehicle negligently, leaving the scene after property damage (three counts), speeding, failing to stop for a police officer, assault and battery by means of a dangerous weapon (three counts), furnishing a false name to a police officer, and carrying a firearm without a license. The complaint also charged the defendant with being a fugitive from justice and being a fugitive from justice upon a court warrant, but the parties stipulated prior to trial that neither of these latter charges would be submitted to the jury.

After a trial by jury, the judge allowed the defendant's request for a required finding of not guilty on the charges of refusing to identify himself while operating a motor vehicle, assault and battery by means of a dangerous weapon, and furnishing a false name to a police officer. The defendant was convicted on the charges of operating a motor vehicle negligently, leaving the scene after property damage, failing to stop for a police officer, and carrying a firearm without a license. He was also found responsible on the charge of speeding.

On appeal, the defendant claims that there was insufficient evidence to warrant his conviction for carrying a firearm without a license. He also claims that the judge erred in allowing in evidence certain prejudicial hearsay testimony and certain other items of evidence. We agree that certain extrajudicial statements were wrongly admitted but conclude that, in the circumstances of this case, they did not give rise to a substantial risk of a miscarriage of justice. We therefore affirm the convictions and the responsible finding on the speeding charge.

Background. The pertinent facts that the jury could have found were as follows: On Sunday, August 13, 2000, at about 2:00 A.M., Officer Sean Carroll of the Providence, Rhode Island, police department, while on patrol in a marked cruiser, stopped a white Toyota sport utility vehicle (SUV) on a small dirt road leading into a parking lot behind an apartment complex in South Providence. Prior to making the stop, Officer Carroll activated the cruiser's blue lights and sirens. He also called for backup.

Officer Carroll approached the driver's side of the vehicle and used his flashlight to illuminate the inside of the vehicle. He observed the driver and three other individuals seated in the vehicle. Officer Carroll instructed the driver to stop the vehicle and turn off the engine. Meanwhile, a second Providence police officer, John Lough, arrived in a cruiser. Two additional police officers, mounted on horses, also arrived to provide backup.

The driver did not obey Officer Carroll's instructions. Rather, he began to drive the SUV backwards and forwards in an apparent effort to turn the car around in the narrow driveway. Officer Carroll attempted to pull open the front door, but found that it was locked. He then attempted to break the window with his flashlight, but the vehicle drove into him, knocking him to the ground. At this point, Officer Carroll heard what he believed were four or five gun shots coming from the vehicle, and he therefore took cover behind a parked minivan.

The SUV backed across the length of the parking lot and proceeded through an opening at the other end out onto a street leading to Route 95. Officer Carroll reentered his cruiser and followed the vehicle. Officer Lough and several other Providence police officers also joined in the pursuit of the SUV, which proceeded north on Route 95 at speeds of up to 135 miles per hour.

Just after it had crossed into Massachusetts, the SUV hit and bounced off a car being driven by Steven Varrieur. Farther up the highway, the SUV also hit cars being driven by Vincenzo Palladino and Michael Haliotis.¹ By this time, several Massachusetts State police officers had joined in the pursuit. Additionally, a Massachusetts State police officer deployed "stop sticks"² in the middle of Route 95, about a mile before its intersection with Route 128.

The SUV passed over the stop sticks and then careened off the road into a wooded area near the ramp leading from Route 95 to Route 128. A posse of officers promptly converged on the vehicle and apprehended two individuals, Carmelo Maldonado and Carlos Richard, who were standing near the vehicle. A canine unit then arrived, and the police used a loud speaker to warn the two other persons believed to have run from the car that the dogs would be released to find them if they did not come out of hiding. At that point, the defendant and an additional individual, Ortez Sanchez, emerged from the woods and surrendered to the police. All four men were arrested and taken to the State police barracks for booking.

A tow truck pulled the SUV back up to the roadway. Officer Jose Deschamps of the Providence police entered the vehicle and saw the butt of a gun protruding from a green backpack located in a storage area behind the back seat. He did not remove these items. Rather, the vehicle was secured and towed to the police garage in Providence. Officer Deschamps followed the vehicle as it was being towed.

After the vehicle had arrived back in Providence, Detective Robert Padessa of the Providence police photographed the vehicle and conducted a search of its interior. Detective Padessa had earlier inspected the area behind the apartment complex where the vehicle had initially been stopped, and had there discovered three spent .40 caliber shell casings which matched the weapons carried by Providence police officers. During his subsequent search of the vehicle, Detective Padessa discovered in the rear storage area, which could be accessed from the back seat, the green backpack previously observed by Officer Deschamps. Within the backpack, he found a .25 caliber Beretta pistol, the stub of a paycheck issued to "Elias Valentin," and a shirt with the company logo "Washington Inventory Service," which was the company listed on the stub of the paycheck. Detective Padessa also found a knife located under the front passenger seat of the vehicle.

At trial, Officers Carroll and Lough, several of the other officers who were involved in the chase, Detective Padessa, and the three individuals who were driving the cars hit by the SUV all appeared as witnesses for the Commonwealth, and testified to the events just described. Both Officers Carroll and Lough identified the defendant as the driver of the SUV.

The defendant did not present any evidence. His primary defense was that he was not in fact the driver of the SUV, and his trial strategy was to raise doubts about the accuracy of the officers' identification of him as the driver, as well as his knowledge that a gun was present in the car.

1. Sufficiency of the evidence. The defendant argues that the evidence introduced at trial tended to show only that he was present in the SUV where the weapon was discovered, but was insufficient to show either that he knew that the weapon was in the vehicle, or that he had the power and intent to exercise control over the weapon. Such knowledge, power and intent are essential elements of a showing of a constructive possession of a firearm. See Commonwealth v. Boone, 356 Mass. 85, 87-88, 248 N.E.2d 279 (1969); Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977).

It is settled, however, that the requisite knowledge, power and intent to exercise control over a firearm may be shown by "presence, supplemented by other incriminating evidence." Commonwealth v. Albano, supra at 134, 365 N.E.2d 808, quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir.1976). Here, the gun was discovered not only in a vehicle that the defendant was driving, but also in open view in a backpack containing the defendant's paystub and a shirt that apparently belonged to the defendant. The defendant also displayed strong consciousness of guilt by refusing to stop for the police, and then proceeding on the wild chase we have described. The jury could reasonably infer from this evidence that the defendant had knowledge of the gun and also the power and intent to exercise control over it. Id. at 134-135, 365 N.E.2d 808. See Commonwealth v. Gizicki, 358 Mass. 291, 297, 264 N.E.2d 672 (1970); Commonwealth v. Gray, 5 Mass.App.Ct. 296, 298, 362 N.E.2d 543 (1977); Commonwealth v. Alcantara, 53 Mass.App.Ct. 591, 596-597, 760 N.E.2d 1236 (2002).

2. Admission of hearsay evidence. After the parties had stipulated that the charges of being a fugitive from justice and being a fugitive from justice upon a court warrant would not be submitted to the jury, the judge specifically instructed the prosecutor not to elicit any testimony regarding any out-of-State warrants. Nevertheless, during her direct examination of Officer Carroll, the prosecutor elicited that the officer had stopped the SUV because of a report that it had been involved in an armed robbery earlier that same evening in Providence. More specifically, Officer Carroll testified as follows:

Q. "Okay. And where were you at approximately 2 A.m.?"

A. "At the corner of Prairie and Thurhers."

Q. "Okay. And what were you doing there?"

A. "We were actually on a vehicle stop at that time."

Q. "Okay. And what was the nature of that stop?"

A. "It was in relation to an armed robbery which had...