Commonwealth v. Galarza

• Decision Date: 15 August 2018
• Docket Number: No. 17-P-728,17-P-728
• Citation: 93 Mass.App.Ct. 740,109 N.E.3d 508
• Parties: COMMONWEALTH v. Edward GALARZA.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 740

109 N.E.3d 508

COMMONWEALTH

v.Edward GALARZA.

No. 17-P-728

Appeals Court of Massachusetts, Hampden..

Argued June 5, 2018

Decided August 15, 2018

David Novod for the defendant.

Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Trainor, & Blake, JJ.

BLAKE, J.

Following a jury trial in the District Court, the defendant, Edward Galarza, was convicted of various firearm related offenses.¹ On appeal, the defendant claims that (1) the motion judge erred in denying his motion to suppress, (2) the trial judge denied him the opportunity to present certain defenses, and (3) the evidence was insufficient on the conviction of possession of a loaded firearm without a license. We affirm in part and reverse in part.

1. Background. The jury could have found the following facts. On September 15, 2015, at approximately 1:50 A.M. , State police Trooper Matthew Stone was on patrol in a marked sport utility vehicle on Armory Street in Springfield, a high crime area. Stone saw a pickup truck traveling in excess of the posted speed limit. As Stone increased his speed to catch up with the pickup truck, the truck rapidly slowed down. Stone noticed that the rear registration plate lights were not working, and that the driver's side mirror was cracked. After stopping the pickup truck, Stone approached it and saw the operator, later identified as the defendant, bend forward slightly and move to his right. As the defendant bent forward, Stone could no longer see his head and torso. When Stone reached the driver's side window, the defendant was speaking on a cellular telephone (cell phone) "very urgently, very nervously." The defendant asked the person on the other end of the cell phone call to come to the location of the stop. Stone saw that the defendant was "very nervous," "panicked," and "breathing very heavily."

Stone asked the defendant to end the call; the defendant refused; Stone again asked the defendant to end the call. This time, without ending the call, the defendant turned toward Stone and told him that the party on the other end of the cell phone call owned the pickup truck. Stone asked the defendant for his driver's license and the pickup truck's registration. The defendant produced only his license, telling Stone that the registration was not in the truck. When asked how he knew that, the defendant answered that "he just knew." Over the speaker on the cell phone, Stone heard the voice of a third party tell the defendant two or three times that the registration was in the center console. When Stone asked the defendant about this, he responded by opening the glove box and quickly closing it. He said, "[S]ee, it's not in there." Stone responded that the third party said the registration was in the center console, not the glove box. The defendant placed his arm over the center console and refused to open it, in an effort to block access to it.

The defendant became extremely nervous and began to look around. Stone was concerned that the defendant would either try to flee or fight; Stone was also concerned for his safety. As a result, Stone ordered the defendant not to move. At the same time, a Springfield police officer drove by and Stone signaled that he needed assistance. Additional Springfield police officers soon arrived on the scene. Stone ordered the defendant to get out of the pickup truck. Although not yet under arrest, the defendant was handcuffed. Meanwhile, Stone returned to the pickup truck and opened the center console, where he observed a handgun. Stone asked the defendant to produce a "license to carry," and the defendant responded that he did not have one. The defendant was then arrested and given Miranda warnings. The gun was loaded with one round of ammunition in the chamber and seven rounds of ammunition in the magazine.²

Stone called for a tow truck.³ While the pickup truck was being prepared to be towed, an individual arrived, later identified as Albin Medina, who said he was its owner. Stone recognized Medina's voice as the same one that he heard on the cell phone speaker; Medina confirmed that, in fact, it was. Stone verified that Medina owned the pickup truck and had a driver's license. Stone asked him if there was anything in the pickup truck that Stone needed to be aware of; Medina said no. Stone then released the pickup truck to him.

2. Motion to suppress.⁴ a. Exit order. The defendant contends that the motion judge erred in denying his motion to suppress because the exit order, patfrisk,⁵ and search of the pickup truck's center console amounted to an unreasonable warrantless search. "In reviewing a ruling on a motion to suppress, we accept the [motion] judge's subsidiary findings of fact absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law." Commonwealth v. Cawthron, 479 Mass. 612, 616, 97 N.E.3d 671 (2018) (quotation omitted). "We review independently the application of constitutional principles to the facts found." Commonwealth v. Amado, 474 Mass. 147, 151, 48 N.E.3d 414 (2016) (quotation omitted).

Here, the pickup truck was stopped for speeding. Police officers are warranted in stopping a motor vehicle for traffic violations. See generally Commonwealth v. Buckley, 478 Mass. 861, 865-866, 90 N.E.3d 767 (2018). The defendant does not challenge the legality of the stop. Instead, he contends that Stone did not have reasonable suspicion to order the defendant to get out of the pickup truck. An exit order is warranted in three situations: (1) "when a reasonably prudent [person] in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger"; (2) "if the officer developed a reasonable suspicion based on specific and articulable facts that the [subject of the exit order] was engaged in, or about to engage in, criminal activity"; and (3) "where the police were conducting a search of the automobile on other grounds." Amado, 474 Mass. at 152, 48 N.E.3d 414 (quotations omitted). "The police are not required to gamble with their personal safety ... and are entitled to take reasonable precautions for their protection." Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 350, 921 N.E.2d 1026 (2010) (quotations omitted). The defendant parses the facts to suggest that, viewed independently, the defendant's nervousness, his ducking down, and the high crime area where the stop occurred were not enough. However, these facts must be viewed in the totality of the circumstances. See Commonwealth v. Stampley, 437 Mass. 323, 325-326, 771 N.E.2d 784 (2002). Viewing the evidence through the lens of an experienced, trained trooper, as the motion judge did, the exit order was proper. The motion judge articulated a multitude of factors that justify the exit order. As Stone approached the pickup truck, the defendant ducked down; he ignored Stone's command to end the cell phone call multiple times; he appeared nervous and frantic; he refused to open the center console despite information that the pickup truck registration was contained in it; he put his hand over the center console; the pickup truck was stopped in a high crime area at 1:50 A.M. ; and he had a single key, without a ring on it, which in Stone's opinion was consistent with theft of a motor vehicle. This constellation of facts justify the exit order because of an objectively reasonable concern for officer safety.

b. The handcuffing. The defendant's argument that he was arrested when the police placed him in handcuffs fares no better. The defendant's brief detention prior to the discovery of the firearm did not rise to the level of a formal arrest. See Commonwealth v. Sinforoso, 434 Mass. 320, 325, 749 N.E.2d 128 (2001). The use of handcuffs is not dispositive on the question whether and when a stop has been transformed into an arrest. See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556-557, 32 N.E.3d 906 (2015). Indeed, at that point in time the police had reasonable suspicion, but not yet probable cause, to believe a crime had been committed. Moreover, concern for officer safety also permits the defendant to be handcuffed. See Commonwealth v. Williams, 422 Mass. 111, 117-118, 661 N.E.2d 617 (1996).

c. Search of the center console. Police may conduct a protective sweep of the interior of a motor vehicle for a weapon so long as the search is limited to areas from where the defendant could access a weapon. See Commonwealth v. Manha, 479 Mass. 44, 49, 91 N.E.3d 669 (2018). Allowing the defendant to return to the pickup truck without a search for weapons, where a weapon could be within reach of the defendant, poses an obvious concern for officer safety. See Commonwealth v. Edwards, 476 Mass. 341, 348-349, 67 N.E.3d 1224 (2017) ("Although the defendant was not in the vehicle at the time the gun was observed, ... there was no assurance that he would not be returning promptly to his seat behind the wheel of the automobile"). The defendant's refusal to open the console and his placing his hand over the compartment in a way that prevented access to it justified the search. The motion was properly denied.

3. Defenses. The defendant next argues that it was error for the trial judge to prevent him from presenting evidence of a third-party culprit and that the police investigation was inadequate. We disagree.

a. Third-party culprit. A defendant is given wide latitude to present evidence that someone other than himself committed the crime; however, that latitude is not boundless. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 800-801, 906 N.E.2d 299 (2009) ; Mass. G. Evid. § 1105 (2018). A judge is permitted broad discretion in deciding whether to exclude third-party culprit evidence. See Silva-Santiago, 453 Mass. at 801, 906 N.E.2d 299.

On the morning of trial, the defendant indicated his intention to call his prior attorney, Peter Slepchuk, as a witness. During a voir dire, Slepchuk testified that h...