Commonwealth v. ELYSEE
| Citation | 77 Mass.App.Ct. 833,934 N.E.2d 837 |
| Decision Date | 29 September 2010 |
| Docket Number | No. 07-P-1169.,07-P-1169. |
| Parties | COMMONWEALTH v. Ferndy ELYSEE (and five companion cases ). |
| Court | Appeals Court of Massachusetts |
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Michael A. Waryasz, for Ferndy Elysee.
Robert E. Fox, Brighton, for Richard Davis.
Kris C. Foster, Assistant District Attorney, for the Commonwealth.
Present: GREEN, RUBIN, & WOLOHOJIAN, JJ.
Two firearms were found in a vehicle in which defendants Ferndy Elysee and Richard Davis were passengers after a Boston police officer ordered Davis to exit the vehicle when it was stopped for a traffic violation. The defendants were each charged with possession of a firearm without a license, G.L. c. 269, § 10( a ), second offense, G.L. c. 269, § 10( d ); possession of ammunition without a firearm identification card, G.L. c. 269, § 10( h ); and unlawful possession of a firearm containing ammunition, G.L. c. 269, § 10( n ). 2 A jury found the defendants guilty of each offense, with each defendant subsequently pleading guilty to the second offense portion of the indictments issued pursuant to G.L. c. 269, § 10( d ). The defendants each timely filed a notice of appeal. 3
The defendants both challenge the denial of a motion to suppress, the sufficiency of the evidence presented at trial, and the admissibility of certain witness testimony. Davis also challenges a portion of the Commonwealth's closing, and Elysee also challenges the denial of a motion to sever and a supplemental instruction given by the judge in response to a question from the jury. 4 We discuss each claim of error in turn.
We are presented first with a question concerning the lawfulness of the police officer's order that a passenger of a motor vehicle stopped for a traffic violation exit the vehicle. Both defendants filed pretrial motions to suppress the two firearms that were found in the vehicle as a result of that exit order, citing both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. In his memorandum of decision and order denying those motions, the motion judge made findings of fact and adopted as fact the testimony of Boston police Officers Brian Ball, Ismael Henriquez, and Joel Resil, which he found to be truthful. On appeal, we review the motion judge's subsidiary findings of fact for clear error, and “independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004).
As drawn from the motion judge's findings and the testimony of the three officers, the facts supported by the record are as follows. On December 19, 2006, Boston police Officers Bryan Ball and Dennis Medina, both of the anti-crime unit, went to the Dorchester District Courthouse expecting to testify. Through the glass front door and glass front wall panels of the courthouse, they saw a group of young men inside the courthouse foyer (but outside the security screening checkpoint) engaged in a disturbance. Two detectives were already inside the courthouse attempting to keep the angry, boisterous group from erupting into violence. Indeed one of the detectives informed Officer Ball that there had been a fight earlier. Officer Ball recognized one of the young men in the foyer as Meshach Golston. Golston was standing by himself, while the remaining young men were taunting and yelling angrily at him, saying things like Golston appeared to be very distressed.
Officer Ball was aware that there had been numerous incidents of violence inside and in the immediate vicinity of the Dorchester District Courthouse as well as recent shootings outside the courthouse. He had made arrests for affrays in the courthouse and shootings outside it. Officer Ball knew Golston to be associated with the Lucerne Street gang, to have been very involved in gang activity, and to have been previously arrested for a firearm offense. Officer Ball recognized some members of the group confronting Golston to be members of the Morse Street gang, which Officer Ball knew to be engaged in an ongoing violent feud with the Lucerne Street gang. Officer Ball was aware that some members of the Morse Street group had been arrested for firearms offenses, and that Boston police had received many reports of shootings and firearms violations by members of this group.
Fearing violence, and concerned that Golston's presence was inflaming the members of the Morse Street gang, Officer Ball approached Golston and asked whether he had any business there. Golston said no. Officer Ball told him to leave and, after swearing at Officer Ball, Golston did so. As Officer Ball left the foyer to talk with Officer Medina in front of the building, he saw Golston walk across Washington Street to a store opposite the courthouse. Golston paced back and forth in front of the store, and then returned across the street to the courthouse where he told Officer Ball that he was waiting for his cousin, Dean Tubberville, and that earlier he had been jumped by the Morse Street group inside the courthouse.
Officer Ball had had dealings with and knew Dean Tubberville. He knew that Tubberville had a history of firearms charges. Officer Ball testified that, so far as he knew, Tubberville was not a member of a gang. After Tubberville came out of the courthouse, he and Golston had an excited, emphatic, and animated conversation. Golston and Tubberville then walked back across Washington Street and stood in front of the store. At this point, some members of the Morse Street group came out of the courthouse.
Officer Ball called his sergeant and Boston police Officers Ismael Henriquez and Joel Resil of the anti-crime unit to express his concern that serious violence would erupt between the members of the two groups. Officer Henriquez was familiar with the Lucerne Street gang. He knew that they had been involved with numerous shootings, drug offenses, and violent crimes, and that they were involved in a conflict with the Morse Street gang. Officer Henriquez also knew Golston personally, through several field interrogations that he had conducted. He knew that Golston had a pending gun charge, that he may have been a victim of a shooting, and that he was usually seen with members of the Lucerne Street gang. Officer Henriquez had also observed and questioned Tubberville in the course of his police work. Officer Resil similarly knew both Golston and Tubberville.
Officers Henriquez and Resil were in an unmarked anti-crime unit car not far away, so Officer Ball asked them to provide assistance at the courthouse. They drove to Wheatland Avenue and stopped a block or so down the street from the intersection of Wheatland Avenue and Washington Street. Meanwhile, Officer Ball watched as Golston and Tubberville were picked up by a black Mercedes sports utility vehicle (SUV) that had come down Wheatland Avenue. The Mercedes made a right turn onto Washington Street without using a turn signal, and headed outbound toward Codman Square, an area known for frequent firearms and drug offenses. Officer Ball asked Officer Henriquez to stop the SUV for the turn signal infraction.
Officers Henriquez and Resil had seen the SUV driving on Wheatland Avenue, but did not notice whether it had signaled when it turned onto Washington Street. Relying on what Officer Ball reported, they followed the SUV. They observed it make a right turn onto Aspinwall Road, this time using a turn signal. Officers Henriquez and Resil then signaled the SUV to stop and it promptly complied. The officers exited their car and approached the vehicle-Henriquez walked to the driver's side of the SUV and Officer Resil walked to the passenger side. As the officers approached, they noticed the rear of the SUV rocking, indicative of movement by the occupants. The officers suspected that one or more of the occupants was trying to conceal something.
Because the SUV's windows were heavily tinted, the officers for their own safety ordered the occupants to lower all the windows. They discovered five people in the SUV: Golston in the front passenger seat; Tubberville in the right rear seat; defendant Ferndy Elysee in the center rear seat; defendant Richard Davis in the left rear seat; and Jazzlyn Walker, the driver. Officer Henriquez recognized Elysee as having previously been arrested for a firearm offense, and also believed that he had been a shooting victim. Officer Resil similarly associated Elysee with a history of firearm violence, and had also briefly dealt with Davis in the past, though not as much as with either Tubberville or Elysee.
Walker informed Officer Henriquez that although she had a driver's license, she did not have it with her. Officer Henriquez returned to his car to check on the driver and vehicle information; to perform a warrant check on all the occupants; and, in light of the number of people in the SUV, the circumstances of the altercation at the courthouse, the known history of passengers in the SUV with firearms, and the fact that only he and his partner were on the scene, to ask for backup. Officer Resil positioned himself at the rear of the SUV. As a result of the earlier events at the courthouse and their personal knowledge about at least three of the five occupants, the officers had developed concern for their safety. Officer Henriquez thus decided to wait for backup before returning to the SUV. Officers Lakenya Webster and Roland Sandefur soon arrived on the scene.
Officer Henriquez once again approached the driver's side of the SUV while Officer Resil returned to the passenger side. The officers noticed that none of the occupants were wearing seatbelts. Officer Henriquez asked Davis, seated in the left rear seat, for his name and date of birth. Davis did not look at the officer, but kept...
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