Opinion
No. 15–P–613.
07-20-2016
COMMONWEALTH v. William BRIGHTMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, William Brightman, was convicted of firearm offenses. On direct appeal, we affirmed those judgments and upheld the denial of the defendant's motion to suppress in an unpublished decision pursuant to our rule 1:28. On November 7, 2014, the defendant filed a motion for a new trial based on a claim that the Supreme Judicial Court's decision in Commonwealth v. Stewart, 469 Mass. 257 (2014), changed the law such that his motion to suppress should have been allowed. We agree with the judge who denied the defendant's motion for a new trial, because Stewart is entirely consistent with the legal principles that governed the decision on the defendant's motion to suppress.
See Commonwealth v. Brightman, 84 Mass.App.Ct. 1126 (2013). In Brightman, although we affirmed the judgments as to the firearm offenses, we reversed the judgment as to the offense of possession with intent to distribute marijuana based on insufficiency of evidence.
Background. The defendant does not challenge the accuracy or completeness of the factual findings made by the judge who denied his motion to suppress. In a nutshell, the judge found that the police seized the defendant in order to conduct a threshold inquiry when they called to him to “come here” as he passed their cruiser while crossing a street in New Bedford. A chase ensued. As the defendant fled, an officer saw him remove “something” from his waistband and throw it onto a nearby rooftop. The police apprehended the defendant in the backyard of a multifamily home and in the nearby grass discovered a gun, which was used as evidence against him at trial. The judge who denied the defendant's motion to suppress found that at the time of the stop, the police knew that (1) the defendant was in a “high-crime area,” (2) the defendant was associated with a criminal gang known as the Crips, (3) when the defendant first made eye contact with the police, he pressed his forearm against his waist and held it there, (4) at the same time, the defendant also “increased the speed at which he was walking away from them,” and (5) as the defendant walked away from the police, he “kept his eyes focused on them.”
Discussion. The defendant's motion to suppress was denied, and that decision was upheld by this court based on the principle that “[a]n officer has the right ‘to make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime.’ “ Commonwealth v. Watson, 430 Mass. 725, 729 (2000), quoting from Commonwealth v. Silva, 366 Mass. 402, 405 (1974). This court further reasoned that the facts found by the judge established reasonable suspicion to believe that a crime was being committed. See Commonwealth v. DePeiza, 449 Mass. 367, 373–374 (2007). Accordingly, when the defendant began to run away, the police had a right to chase him. See Commonwealth v. Williams, 422 Mass. 111, 117–119 (1996) ; Commonwealth v. Sweezey, 50 Mass.App.Ct. 48, 51–52 (2000).
An examination of the defendant's motion for a new trial reveals that the only “new” claim he makes is based on Stewart. As the judge who denied the defendant's motion for a new trial correctly recognized, however, the Stewart case did not alter the law permitting a threshold inquiry when there is reasonable suspicion of criminal activity and the law requiring probable cause to arrest. See id. at 261–262. In the present case, the police had reasonable suspicion of criminal activity in order to make a threshold inquiry. As the defendant ran from them, the police saw him throw a gun onto a rooftop, which provided them with probable cause to arrest the defendant for possession of a firearm. That in turn permitted the police to search the defendant incident to the arrest.
The Commonwealth argues that the defendant's motion should be denied because it is transparently an attempt to relitigate issues already decided and affirmed on direct appeal. See Commonwealth v.. Rodriguez, 443 Mass. 707, 710–711 (2005) (concluding that principles of direct estoppel barred defendant's attempt in her motion for new trial from relitigating issues decided in her motion to suppress). While this argument has force, we address the merits.
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Order denying motion for new trial affirmed.