Commonwealth v. Gomes
| Decision Date | 19 September 2003 |
| Docket Number | No. 02-P-441.,02-P-441. |
| Citation | 59 Mass. App. Ct. 332 |
| Parties | COMMONWEALTH v. John P. GOMES (and ten companion cases[ 1 ]). |
| Court | Appeals Court of Massachusetts |
Constitutional Law, Assistance of counsel, Search and seizure. Practice, Criminal, Assistance of counsel, Instructions to jury. Search and Seizure, Expectation of privacy. Arrest. Police, Unlawful arrest. Privacy. Evidence, Spontaneous utterance.
Complaints received and sworn to in the Dorchester Division of the District Court Department on January 2, 1998.
The cases were tried before Thomas J. May, J.
Charles Allen Hope (John H. Cunha, Jr., with him) for John P. Gomes & others.
Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.
Present: Grasso, McHugh, & Mills, JJ.
May an individual forcibly resist a warrantless police entry into his residence that is later determined to be unlawful, or is the right forcibly to resist police limited by the rule of Commonwealth v. Moreira, 388 Mass. 596, 601 (1983), to resistance against excessive or unnecessary force upon his person? We hold that absent the use of excessive or unnecessary force by police upon his person, an individual may not forcibly resist even an unlawful entry into his residence by one who he knows or has good reason to believe is a police officer engaged in the performance of his duties.[2]
1. Background. A melee erupted in the course of a police investigation into a possible breaking and entering into a residence at 8 Corwin Street in the Dorchester section of Boston. Although it was never determined whether a breaking and entering had occurred, or who might have been involved, seven individuals were charged with assault and battery upon the investigating officers.[3] We consider appeals by four of those individuals found guilty after jury trial: John Gomes (Gomes); Arnaldo Fernandes (Arnaldo)[4]; Aguinaldo Fernandes (Aguinaldo); and David Taylor (Taylor).
On appeal, the codefendants contend that trial counsel were ineffective in failing to (1) move to suppress everything that followed an allegedly unlawful entry into a residence at 6 Corwin Street, and (2) request that the jury be instructed on an asserted right to use force to resist unlawful entry into the residence. Closely related appellate contentions are that the trial judge erred in (1) denying motions to dismiss[5]; and (2) refusing to instruct the jury on the Fourth Amendment requirements for police to enter the home or demand that an occupant produce identification. Finally, the defendants assert that the judge's exclusion of various excited utterances created a substantial risk of a miscarriage of justice. We affirm.
2. The entry and the ensuing melee. The contextual facts relevant to the issues on appeal are these. Early on New Year's morning, 1998, Tiffany Talbert awakened to a loud banging on the side of her home at 8 Corwin Street. Talbert, who lived on the third floor of a three-family dwelling, peered out a kitchen window that overlooked the door to the cellar. She noticed a board leaning against the house. Talbert was alarmed because one month earlier someone had broken into her home via the cellar windows. Subsequent to that break, Talbert's landlord had boarded up the cellar windows.
Talbert called the police. Boston police Officers Kevin Coyne and Joseph Tse arrived within minutes and entered the building through the cellar door that was normally kept locked. They proceeded to the third floor where they spoke with Talbert and then accompanied her to the cellar. There, in addition to the unlocked door, the officers discovered that one of the cellar windows appeared to have been forced open from the outside. The officers secured the window and prepared to leave.
At Talbert's request, the officers searched the perimeter and the yard at the rear of Talbert's house. While at the side of the house opposite the basement door, they heard hushed voices and saw a shadowy motion followed by the sound of a door closing. The lighting was limited. The officers walked in the direction of the voices and came to the door to 6 Corwin Street.
Officer Coyne, who was in uniform, knocked on the door and identified himself as a police officer. Eventually, Arnaldo opened the door about a foot. From this vantage the police only could see the width of Arnaldo's face. He appeared intoxicated, with glassy eyes and an odor of alcohol on his breath. Coyne asked Arnaldo to open the door further, but Arnaldo refused to comply. Likewise, he refused to give his name or produce identification. Coyne placed one hand on the door and his foot in the door, forcibly keeping the door open.
Officer Coyne again asked Arnaldo for identification. Arnaldo told the police to go to the front of the house, ring the second floor doorbell, and talk to his mother. Officer Tse proceeded in that direction, while Coyne remained at the door with Arnaldo.
Arnaldo asked Officer Coyne to remove his foot from the entrance and then attempted to push the door closed. Coyne prevented Arnaldo from closing the door, using his foot and applying pressure with his hands, and directing that Arnaldo stop. During a struggle that ensued as Arnaldo sought to close the door, Arnaldo shoved Coyne in the chest. Coyne grabbed Arnaldo by his shirt and attempted to place him under arrest. Arnaldo resisted and Coyne yelled for Tse to assist him.[6]
The struggle to arrest Arnaldo and forcibly remove him from the house spilled out into the backyard where the officers attempted to handcuff Arnaldo. At some point, a group that included Aguinaldo, Gomes, and Taylor came running from inside the house and joined the fracas. One of the assailants picked up a two by four piece of wood. Officer Tse responded with pepper spray aimed in the direction of Taylor, Gomes, and Arnaldo. The spray hung in the air, exposing everyone in the area, including the police, to its effects. With the arrival of backup, the police brought an end to the melee.
3. The failure of counsel to file a motion to suppress evidence. The codefendants contend that trial counsel were ineffective in failing to file a motion to suppress. They maintain that Officer Coyne's placing his foot in the door and forcibly preventing Arnaldo from closing it constituted an unlawful entry that requires suppression of everything that transpired thereafter as the "fruit of the poisonous tree." Had the police allowed Arnaldo to close the door as he had a right to do, the argument goes, no evidence would have been gathered, and the subsequent crimes would not have been committed. See Wong Sun v. United States, 371 U.S. 471, 484-488 (1963); Commonwealth v. Lahti, 398 Mass. 829, 834 (1986), cert. denied, 481 U.S. 1017 (1987).
We discuss a preliminary difficulty with this contention. Not every defendant could establish the requisite expectation of privacy in 6 Corwin Street to challenge the lawfulness of the entry under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. See Minnesota v. Carter, 525 U.S. 83, 90-91 (1998); Commonwealth v. Carter, 424 Mass. 409, 411 (1997) (). Neither Taylor nor Gomes resided at 6 Corwin Street or were overnight guests with a cognizable expectation of privacy in the premises. See Minnesota v. Olson, 495 U.S. 91, 98-99 (1990); Commonwealth v. Morrison, 429 Mass. 511, 513 (1999). Nor were the four codefendants charged with possessory offenses stemming from a search or seizure of premises in which at least one had an expectation of privacy. See Commonwealth v. Frazier, 410 Mass. 235, 243 (1991); Commonwealth v. Carter, 424 Mass. at 411 ().
Beyond the absence of a cognizable expectation of privacy in Taylor and Gomes,[7] another fundamental problem exists with the defendants' contention. Counsel were not ineffective in failing to request what the law would not countenance. See Commonwealth v. Reid, 400 Mass. 534 (1987). Even if considered an unlawful entry, Officer Coyne's use of force to prevent Arnaldo from closing the door did not result in the seizure of contraband or other evidence of criminal activity, see Commonwealth v. Pietrass, 392 Mass. 892, 900-901 (1984), or lead to police observations of contraband or of other criminal activity inside the dwelling. See Commonwealth v. Ramos, 430 Mass. 545, 550-551 (2000). Compare Commonwealth v. Marquez, 434 Mass. 370, 376- 377 (2001).
Neither Fourth Amendment nor art. 14 exclusionary rules extend to suppression of evidence of crimes that are in reaction to an illegal search or seizure. See Commonwealth v. Saia, 372 Mass. 53, 58 (1977) (); Commonwealth v. Mock, 54 Mass.App.Ct. 276, 284-285 (2002). "There is no simplistic `but for' analysis that applies in this area of the law." Commonwealth v. Saia, supra. Here, as in Saia, we deal with Ibid.
In so holding, we follow numerous other jurisdictions that prohibit a defendant from invoking the exclusionary rule to suppress evidence of his own unlawful conduct in response to police actions in violation of constitutional protections against unlawful search and seizure. See, e.g., State v. Miller, 282 N.C. 633, 641 (1973) (); People v. Abrams, 48 Ill.2d 446, 455-456 (1971) (); Akron v...
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