Commonwealth v. Mccollum

• Citation: 79 Mass.App.Ct. 239,945 N.E.2d 937
• Decision Date: 14 April 2011
• Docket Number: No. 07–P–1881.,07–P–1881.
• Parties: COMMONWEALTHv.Alan McCOLLUM.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 239

945 N.E.2d 937

COMMONWEALTH

v.Alan McCOLLUM.

No. 07–P–1881.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 6, 2010.Decided April 14, 2011.

Estera Halpern, Brookline, for the defendant.Elisabeth Kosterlitz, Assistant District Attorney, for the Commonwealth.Present: CYPHER, GRASSO, & MILLS, JJ.MILLS, J.

The defendant, Alan McCollum, appeals his convictions of drug and firearm offenses, arguing (1) insufficient evidence, (2) that Melendez–Diaz v. Massachusetts, ––– U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) requires reversal of all of his convictions, (3) that his motion to suppress was improperly denied, (4) a Miranda violation and other Fourth Amendment violations were not presented to the motion judge, (5) a variety of other constitutional claims, including admission of his post-Miranda silence as evidence, violation of his right not to testify, violation of his right to present a defense, and that the Second Amendment renders the firearm and ammunition possession statutes under which he was convicted unconstitutional, (6) a variety of evidentiary issues, including admission of unfairly prejudicial evidence and prosecutorial misconduct, and (7) improper denial of his new trial motion. We affirm in part and reverse in part.

1. Background. We recount the evidence as it developed at trial. On September 4, 2003, several Boston police officers were surveilling a stolen car located in the Roxbury section of Boston. Two officers saw Steven Williams getting into that car. The officers recognized Williams and were aware that he had a criminal record that included firearm and drug offenses. In addition, the officers knew that Williams had outstanding warrants in California and in the Commonwealth. The officers tried to stop Williams by blocking both ends of the street with police vehicles. Williams struck one of the police vehicles with the stolen car and escaped on foot. One officer saw Williams tossing objects, which were later identified as plastic bags containing “crack” cocaine, into a field. Officers observed Williams run into an apartment building at 80 Walnut Avenue in Roxbury.

The officers obtained back up, waited for a representative of the building's management to arrive, and began searching the building. After searching several apartments with the occupants' consent, they went to apartment number 12 (apartment 12).¹ The officers knocked and announced their presence, but no one responded. A representative of the building's management then opened the door to apartment 12 with his key.

In a bedroom inside, the officers found Williams lying on a bed appearing to the officers to be feigning sleep, and the defendant sitting on the edge of the bed with a young girl. The officers later learned from the defendant that the girl was his daughter and the apartment was leased to the girl's mother, Andrea Lynch, who was not present. The officers arrested Williams.

The police conducted a protective sweep of the apartment and found an empty holster in a hallway closet. An officer asked the defendant whether there was a gun in the apartment. When the defendant answered yes, another officer read the defendant his Miranda warnings. The defendant then revealed the location of a .44 caliber firearm in a grocery bag in the same hallway closet where the holster was found. The bag also contained six .44 caliber rounds of ammunition, not loaded in the gun.

Based on this information, an officer sought a warrant to search apartment 12. The affidavit in support of the warrant recited the above facts, as well as additional information about Williams's outstanding arrest warrants and that Williams had discarded a cellular telephone and what appeared to be three bags of crack cocaine while fleeing from police. A warrant issued. The officers then searched apartment 12. They found seven bags of crack cocaine on the floor of the bedroom closet and one bag of crack cocaine under the bed where the defendant and Williams were first observed. The officers also discovered a bag of marijuana on top of the kitchen cabinet.

The Commonwealth charged the defendant with possession of cocaine with intent to distribute, G.L. c. 94C, § 32A( c ); possession of cocaine with intent to distribute in a school zone, G.L. c. 94C, § 32J; possession of marijuana, G.L. c. 94C, § 34; possession of a firearm without a license, G.L. c. 269, § 10( a ); and possession of ammunition without a firearm identification (FID) card, G.L. c. 269, § 10( h ), as amended through St.1998, c. 180, § 69. ² The defendant's subsequent motion to suppress, arguing both that the protective sweep was impermissible and that the search warrant affidavit was insufficient, was denied.

At trial, the defendant's counsel announced, in his opening statement, the defendant's intent to testify that he had involuntarily confessed to the location of the firearm found in the hallway closet. He further claimed that the defendant expected to show that any inculpatory admission concerning the firearm happened after police threatened that his daughter's mother would face arrest for firearm charges and that his daughter would go into Department of Social Services (DSS) ³ custody if he did not confess. The prosecutor later stated her intent to move for a mistrial if the defendant did not so testify. The defendant's counsel responded that the defendant would testify. The judge reserved ruling, noting that she would be “extremely distressed” if the defendant did not testify.

Several police officers testified at trial to the events on the day of pursuit and arrest. Certificates of analysis from the ballistician's office of the Boston police department, relating to the firearm and ammunition, and from the State's Department of Public Health laboratory, relating to the cocaine and marijuana, were admitted. After the Commonwealth rested, the defendant moved for a required finding of not guilty on all charges. The judge postponed ruling on the motion until the end of the defendant's case-in-chief.

The defendant presented only himself as a witness. On direct examination, he attempted to testify about a conversation he had in apartment 12 with a police officer, but the prosecutor objected. After sustaining the hearsay objection, the judge conducted a voir dire of the defendant. The defendant claimed that any inculpatory admission concerning the firearm happened only after the police officer threatened to charge Lynch with possession of the firearm and force the defendant's daughter into DSS custody.

Following the voir dire, the judge noted that the defendant had not included this information in the affidavit accompanying the motion to suppress. The judge agreed to admit the testimony and stated that the prosecutor would receive “wide latitude” to cross-examine the defendant on the issue. The defendant testified as above. The prosecutor subsequently cross-examined the defendant extensively about his prior criminal history, his failure to include the police threat in his affidavit, and about Lynch's statement that he stayed at the apartment occasionally.

After the defendant rested, the prosecutor recalled one of the police officers in rebuttal to refute the defendant's testimony. The officer testified that no police officer threatened the defendant, his daughter's mother, or anyone else. The officer further testified that the police never contacted DSS regarding the defendant's daughter and that they left her in her mother's custody.

When testimony concluded, the defendant renewed his motion for a required finding of not guilty. The judge allowed the motion as to the school zone charge. She also allowed the motion as to possession of cocaine with intent to distribute while permitting the jury to consider the lesser included offense of simple possession of cocaine, G.L. c. 94C, § 34. The jury acquitted the defendant of possession of marijuana but convicted him of the remaining three charges: possession of cocaine, unlicensed possession of a firearm, and possession of ammunition without an FID card.

The defendant subsequently moved for a new trial. He asserted that his trial counsel was ineffective for failing to challenge in the motion to suppress other aspects of the warrantless entry and search and the defendant's interrogation, and for failing to object to prejudicial evidence at trial. He also asserted that the prosecutor committed misconduct in a variety of ways, that the judge had erroneously admitted unfairly prejudicial evidence, and that the judge improperly instructed the jury. The defendant's motion was denied by the trial judge. This is a consolidated appeal of the convictions and the order denying the new trial motion.

2. Sufficiency. The defendant argues that the Commonwealth presented insufficient evidence to convict on any of the charges for which the jury found him guilty. We disagree with respect to the charges of possession of a firearm and possession of ammunition, but agree with respect to the charge of possession of cocaine.

Sufficient evidence exists when, viewed in the light most favorable to the Commonwealth, a rational fact finder could find all material elements of the offense established beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).⁴ When a defendant moves for a required finding of not guilty at the close of the Commonwealth's case, the Commonwealth's evidence alone must withstand the Latimore standard. See Commonwealth v. Berry, 431 Mass. 326, 330, 727 N.E.2d 517 (2000).

a. Ammunition. To convict for unlicensed possession of ammunition, the Commonwealth must show that the defendant (1) possessed, (2) ammunition designed for use in any firearm, and (3) without complying with the FID card requirements as provided by the applicable statute. G.L. c. 269, § 10( h ). ⁵ The Commonwealth's evidence was sufficient on all these elements.

First, the Commonwealth presented sufficient...