Commonwealth v. Perez

• Decision Date: 29 August 2011
• Docket Number: No. 10–P–1084.,10–P–1084.
• Citation: 952 N.E.2d 441,80 Mass.App.Ct. 271
• Parties: COMMONWEALTHv.Alfredo PEREZ, Jr.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 271

952 N.E.2d 441

COMMONWEALTH

v.Alfredo PEREZ, Jr.

No. 10–P–1084.

Appeals Court of Massachusetts, Plymouth.

Argued July 12, 2011.Decided Aug. 29, 2011.

Sarah G.J. Clymer for the defendant.Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.Present: MILLS, GREEN, & KATZMANN, JJ.KATZMANN, J.

After a jury trial in District Court, the defendant was convicted of carrying a firearm without a license in violation of G.L. c. 269, § 10( a ). He now appeals, raising three issues. He claims that the motion judge erred in denying his motion to suppress evidence; that the admission of a certificate of ballistics analysis (ballistics certificate), in violation of his constitutional right of confrontation, was not harmless beyond a reasonable doubt; and that his conviction was in violation of the Second Amendment to the United States Constitution. We determine that the admission of the ballistics certificate was prejudicial error requiring a new trial. We are unpersuaded by the defendant's other claims.

Discussion. 1. Motion to suppress. Prior to trial, the defendant filed a motion to suppress evidence, contending that the investigatory stop of the motor vehicle in which he was a passenger was not based on reasonable suspicion. After hearing the testimony of Brockton police Officer Kathy DaSilva and Lieutenant Robert Sergio, the motion judge found that there was reasonable suspicion based on the following:

“Brockton Police Officer Kathy DaSilva testified ... that on December 30, 2007 at approximately 2:40 a.m. she ... received a dispatch to respond to 17 Wilmington Street in Brockton for reports of gun shots being fired. Officer DaSilva arrived on scene within minutes. As she was preparing to search the area for casings she received a second dispatch that a caller had reported seeing a dark blue or green motor vehicle leaving the scene after hearing the shots being fired. The caller supplied the dispatch with a registration number MA9122W. She then received a report from Lieutenant Sergio, the shift commander, that he had spotted the motor vehicle with that license plate. He advised the officers of his location. Officer DaSilva and other cruisers joined Lieutenant Sergio who had been following the motor vehicle. Lieutenant Sergio then executed a stop of the motor vehicle....

“Lieutenant Robert Sergio ... heard the report of the gun shots fired at 17 Wilmington Street. Wilmington Street runs between Main Street and Montello Street. After this dispatch he headed toward Montello Street because he believed that someone fleeing in a motor vehicle would head in that direction. At that time he heard a second broadcast stating that a dark green or blue motor vehicle with license plate number 9122WY left the scene after hearing the shots. At that time he observed a motor vehicle coming south on Montello Street matching that description. This was a short distance from Wilmington Street. Lieutenant Sergio followed the motor vehicle and observed the license plate to be that in the broadcast 9122WY. He then confirmed with dispatch the plate number. He then notified the other cruisers and continued to follow this motor vehicle. He eventually was joined by the other cruisers at which time he activated his emergency lights and pulled the vehicle over. Because of the nature of the call (gunshots) he ordered all occupants out of the motor vehicle. He kept his hand on his sidearm although he never took his gun out of the holster. The defendants were pat frisked for officer safety. No contraband was found on these individuals.... When Lieutenant Sergio found out that a gun was located in the motor vehicle he gave each individual a Miranda warning. The defendant acknowledged he understood same. Lieutenant Sergio asked the group whose gun it was. The defendant replied that it was his gun and that he did not have a license to carry. The defendant was then arrested.”

On appeal, the defendant argues that the motion judge erred in denying his motion to suppress because the traffic stop was not supported by reasonable suspicion as set forth in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002).

The “reasonableness of official suspicion must be measured by what the officers knew before they conducted their [stop].” Commonwealth v. Barros, 435 Mass. 171, 176, 755 N.E.2d 740 (2001), quoting from Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). A police officer may form a reasonable suspicion “based on specific, articulable facts and reasonable inferences therefrom.” Commonwealth v. Alvarado, 423 Mass. 266, 268, 667 N.E.2d 856 (1996). See Smith, Criminal Practice & Procedure § 5.11 (3d ed. 2007). The knowledge of one officer is part of “the collective information” of other officers engaged in the same cooperative effort. Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982). See Commonwealth v. Andrews, 34 Mass.App.Ct. 324, 327, 611 N.E.2d 252 (1993) (applying collective knowledge doctrine to determination of reasonable suspicion justifying investigatory stop). “When, as here, a police radio broadcast directs officers to make an investigatory stop of a motor vehicle, the stop is lawful only if the Commonwealth establishes both the indicia of reliability of the transmitted information and the particularity of the description of the motor vehicle.” Commonwealth v. Lopes, 455 Mass. 147, 155, 914 N.E.2d 78 (2009). To establish particularity, “the Commonwealth must show that the description provided sufficient detail to allow the police officer relying on the [dispatch] reasonably to suspect that a motor vehicle matching the description was occupied by a person or persons who committed the crime under investigation.” Id. at 157, 914 N.E.2d 78. The defendant concedes, as he must, that the license plate number and general description of the vehicle ¹ establish particularity. See ibid. (to establish particularity, “description need not be as singular as a registration plate number”).

“To establish that the transmitted information bears adequate indicia of reliability, the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the underlying circumstances demonstrating that the source of the information was credible or the information reliable (veracity test). Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible. Independent police corroboration may make up for deficiencies in one or both of the factors.” Id. at 155–156, 914 N.E.2d 78 (citations and quotations omitted).

Here, the police made the investigatory stop based on information provided in two 911 telephone calls and relayed by the dispatchers who had received the calls. Neither the recordings of the 911 calls themselves nor the recordings of the police dispatches based on these calls were played at the hearing on the motion to suppress. Contrast Commonwealth v. Mubdi, 456 Mass. 385, 387, 923 N.E.2d 1004 (2010) (recording of police dispatch played at hearing); Commonwealth v. Depina, 456 Mass. 238, 243, 922 N.E.2d 778 (2010) (recording of 911 call was reviewed by motion judge). See generally Commonwealth v. Gomes, 458 Mass. 1017, 1018 n. 5, 937 N.E.2d 13 (2010) (“The Commonwealth would be well advised in the future to make reasonable efforts to introduce [the 911 telephone call recording]”). Thus, our assessment of the basis of knowledge for the two callers is based on the officers' testimony about the information that they received from dispatch. See Commonwealth v. Mubdi, 456 Mass. at 396, 923 N.E.2d 1004.

The basis of knowledge test was satisfied with respect to both the first caller and the second caller. The officers testified that according to the dispatches they received, the first caller heard shots and the second caller observed the vehicle leaving the scene just after the gunshots. Firsthand observations would satisfy the basis of knowledge test. See ibid. While a 911 recording would likely have provided more information about the gunshots, a dispatch of a 911 call that gunshots had been heard at 17 Wilmington Avenue supports the inference that the report was based on personal knowledge or perception.² See Commonwealth v. Ancrum, 65 Mass.App.Ct. 647, 652, 843 N.E.2d 110 (2006); Commonwealth v. Campbell, 69 Mass.App.Ct. 212, 216, 867 N.E.2d 759 (2007). Indeed, as discussed below, when the police returned to 17 Wilmington Avenue and spoke with the initial caller, she stated that she had heard the gunshots. With respect to the second caller, her auditory perception was also buttressed by the specificity of information she relayed, reporting a license plate number that was later confirmed by the police. Thus, “it is reasonable to infer that the source of the information was a firsthand witness to the event and not a casual rumor.” Commonwealth v. Ancrum, 65 Mass.App.Ct. at 652, 843 N.E.2d 110.

“As to the veracity test, our case law assigns greater reliability to an eyewitness whose identity is known to police than to one who is anonymous.” Commonwealth v. Depina, 456 Mass. at 243, 922 N.E.2d 778. “We have also suggested that the reliability of citizen informants who are identifiable, but may not have been identified, is deserving of greater consideration than that of truly anonymous sources.” Commonwealth v. Costa, 448 Mass. 510, 515, 862 N.E.2d 371 (2007).

“ ‘[A] tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of...