Commonwealth v. Gouse
| Decision Date | 10 April 2012 |
| Docket Number | SJC-10958 |
| Parties | COMMONWEALTH v. Damian GOUSE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
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Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Firearms. Constitutional Law, Search and seizure, Right to bear arms. Search and Seizure, Automobile, Inventory, Probable cause. Probable Cause. Evidence, Firearm, Constructive possession, Photograph. Practice, Criminal, Motion to suppress, Instructions to jury. License.
INDICTMENTS found and returned in the Superior Court Department on February 28, 2008.
A pretrial motion to suppress evidence was heard by Robert J. Kane, J., and the cases were tried before him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Sharon Dehmand for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
On January 19, 2008, the defendant got out of the automobile he was driving; attacked his former girl friend, striking her with his fists; followed her down the street; and kicked her in the back. The police apprehended him later that afternoon and retrieved a firearm from the trunk of the automobile. After a two-day hearing, the defendant's motion to suppress the firearm was denied. A jury convicted the defendant of assault and battery (with his fists), in violation of G.L. c. 265, § 13A; assault and battery by means of a dangerous weapon (shod foot), in violation of G.L. c. 265, § 15A (b); and the unlawful possession of a firearm outside of his residence or place of business, in violation of G.L. c. 269, § 10 (a). 1 In the subsequent offender proceeding, the jury found the defendant guilty of unlawful possession of a firearm having previously been convicted of a violent crime, in violation of G.L. c. 269, § 10G (a). The defendant appealed, and we transferred the case to this court on our own motion.
In challenging his convictions, the defendant renews three objections raised below and raises two for the first time on appeal. First, the defendant argues that the firearm should have been suppressed because there was neither probable cause that a firearm would be found in the vehicle nor grounds for conducting an inventory search. Second, he argues that the evidence was insufficient to prove that he constructively possessed the firearm. Third, with respect to the assault and battery convictions, the defendant contends that the judge improperly permitted the jury to view a photograph of the victim's facial injuries.
For the first time on appeal, the defendant claims that the judge failed to clarify in his instructions that the charges of assault and battery and assault and battery by means of a dangerous weapon must be supported by separate and distinct acts, and, as a result, the jury might have convicted the defendant on both charges based on a single striking. He also claims that his convictions of the unlawful possession of a firearm and of being a subsequent offender violated Federal and State due process guarantees and infringed on his right under the Second Amendment to the United States Constitution to keep and bear arms because the Commonwealth was not required to prove the absence of a license to carry the firearm as an element of the crime charged. 2
We reject the defendant's arguments regarding the firearm and subsequent offender convictions, and discern no merit in the defendant's remaining claims. We therefore affirm the jury's verdicts at the trial and subsequent offender proceeding.
1. Background. We recite the largely undisputed facts presented at the suppression hearing. In the margin, we note additional evidence presented at trial pertinent to the defendant's challenge to the sufficiency of the evidence that he was in possession of the firearm.
Shortly after 4 P.M., on January 19, 2008, the defendant attacked the victim near the intersection of Pleasant Street and Choate Street in Fall River. Sergeant Gregory Bell of the Fall River police department quickly arrived on the scene, joined shortly thereafter by Officer Peter DaLuz.
The victim told Officer DaLuz that she had been walking on Pleasant Street when the defendant, driving a blue automobile, approached her and asked her to get inside. When the victim refused, the defendant got out of the vehicle and yelled at her. The victim ran away, but the defendant chased her, caught up with her, and punched her in the face. The victim struggled free and ran to the corner of Pleasant and Choate Streets where he defendant again caught up with her, this time knocking her to the ground and kicking her in the back with his (shod) foot. Officer DaLuz photographed the victim's injuries before she was taken away in an ambulance. Those injuries included a large egg-shaped bump above one of her eyes and a laceration. Blood was flowing from her eye, nose, and mouth.
Two individuals present at the scene alerted the police officers that the defendant might be armed. A bystander and witness to the assault, David Silvia, told Officer DaLuz that on observing the defendant kicking the victim, he ran to the corner and shouted at him to stop. In response, the defendant told Silvia to mind his own business and threatened to shoot him if he did not. 3 The defendant then drove away. The victim's father, who arrived at the scene right after the assault, told Sergeant Bell that the defendant "usually carried weapons." In addition, Officer DaLuz was familiar with the defendant from investigations into several domestic complaints and a shooting at a public housing complex in which the defendant had been a suspect. 4 This information was broadcast to other officers during the course of the investigation. Two other residents of Choate Street witnessed and confirmed the victim's account of the assault. They also provided the police officers with the make, model, and registration number of a blue Saturn automobile that the defendant was driving. The automobile was registered to a female resident of unit 17B of the Pleasant View housing complex in Fall River (unit 17B).
Detectives John Cabral, David Pacheco, and William Falandys were in plain clothes and drove an unmarked vehicle to the Pleasant View housing complex in search of the defendant. Detective Cabral had, two days previously, received information from an anonymous informant that the defendant, who had recently been released from prison, had been armed with a firearm and was dealing "crack" cocaine in Providence, Rhode Island. 5 Shortly after 4:30 P.M., the Saturn was spotted parked unoccupied in front of unit 17B. Cabral, Pacheco, and Falandys took up a surveillance position. A few minutes later, two females came out of the unit and turned their heads back and forth as if they were looking for somebody. One of the females then opened the trunk of the Saturn. The defendant next emerged from the unit carrying a dark bag. 6 The defendant brought the bag to the rear of the Saturn, placed it on the ground, and returned to the unit. One of the females placed the bag in the trunk. The females then got into the Saturn. One sat in the driver's seat and the other in the back seat. The defendant soon returned and sat in the front passenger seat, and the driver began to drive away.
After following it through two turns within the Pleasant View housing complex, the police stopped the Saturn, boxing it in from the front and rear with the assistance of a State police cruiser. The Saturn came to a stop on a public way in the middle of the lane of travel.
The officers quickly left their vehicles and approached the Saturn. All three occupants were removed from the vehicle, frisked, and handcuffed. No weapons were found on their persons. The defendant and the females were transported to a police station. The females were interviewed and later released; they were not charged with any crime.
Meanwhile, Sergeant Bell ordered the impoundment of the Saturn. Falandys and Pacheco inventoried the contents on site. The passenger area contained cellular telephones, personal papers, a pocketbook, and a sweatshirt. Pacheco popped a lever and folded down the back seat to access the trunk. He retrieved from the trunk the dark bag that the defendant had carried out of unit 17B. The bag was leather and it opened and closed with a drawstring. Pacheco opened the bag, finding a .22 caliber rifle with a sawed-off barrel, a .22 caliber magazine, a box containing fifty-two rounds of .22 caliber ammunition, and one spent shell casing.
2. Motion to suppress. The defendant argues that the judge improperly denied his motion to suppress the firearm. We disagree. As the motion judge concluded, the search of the vehicle was justified by the automobile exception to the warrant requirement. 7
Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, subject only to "a few specifically established and well-delineated exceptions." Commonwealth v. Bostock, 450 Mass. 616, 623- 624 (2008), quoting Commonwealth v. Cast, 407 Mass. 891, 901 (1990). "One of those exceptions, commonly known as the 'automobile exception,' applies to situations where the police have probable cause to believe that a motor vehicle parked in a public place and apparently capable of being moved contains contraband or evidence of a...
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