Opinion
19-P-1368
06-28-2021
COMMONWEALTH v. Kimberly MCNAIR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this direct appeal of his convictions, the defendant argues that his motions to suppress and to sever should have been allowed, and that certain unpreserved evidentiary errors resulted in a substantial risk of a miscarriage of justice. We affirm.
The defendant was convicted of strangulation, assault and battery on a family or household member, witness intimidation, illegal possession of ammunition and illegal possession of ammunition as an armed career criminal, possession of a firearm without an FID card as an armed career criminal, and possession of a shot gun, without a license, not at home or work, as a subsequent offense.
1. Motion to suppress. In reviewing a ruling on a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error but conduct an independent review of the judge's ultimate findings and conclusions of law. Commonwealth v. Andre, 484 Mass. 403, 406 (2020). A finding is clearly erroneous if there is no evidence to support it or where the reviewing court is left with the definite and "firm conviction that a mistake has been committed" (citation omitted). Commonwealth v. Bernard, 84 Mass. App. Ct. 771, 773 (2014). Here, the defendant argues that the motion judge erred in concluding that the defendant's wife had actual or apparent authority to consent to the search of their apartment.
A warrantless entry into a home is permissible under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights if it is undertaken with consent by an individual with actual or apparent authority. See Commonwealth v. Lopez, 458 Mass. 383, 391-392 (2010). "[A] person may have actual authority to consent to a warrantless search of a home by the police only if ... the person is a coinhabitant with a shared right of access to the home, that is, the person lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of a substantial duration and who is given full access to the home." Commonwealth v. Porter P., 456 Mass. 254, 264-265 (2010). "Apparent authority is ‘judged against an objective standard: would the facts available to the officer at the moment ... "warrant a man of reasonable caution in the belief" that the consenting party had authority over the premises?’ " Id. at 267, quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990).
Here, the testifying officer -- whom the motion judge credited -- provided ample basis upon which to conclude that the police had a reasonable belief that the defendant's wife had authority to consent to the search. First, when the wife called 911 she asked that the police remove the defendant (her husband) as well as his firearm from "her" apartment. Additional details buttressed the wife's statement that the apartment was hers: when she called 911, she was hiding from the defendant in the bathroom of the apartment; she made personal observation that the defendant was in the living room and had placed a gun inside the drawer of the coffee table; and she was married to the defendant. The fact that the wife was standing downstairs near the front door of the building in which the apartment was located when the police arrived does not undercut her actual or apparent authority to give consent. She identified herself and the defendant to the officers, repeated in substance what she had reported on the 911 call, told the responding officer that her husband was in "her apartment," and again asked that the police remove him and the gun he had placed in the drawer of the coffee table.
Relying on Commonwealth v. Santos, 465 Mass. 689, 695 (2013), the defendant argues that the police were obligated to "make further inquiry" to resolve the ambiguity of whether the wife actually lived in the apartment. But "[t]he police need not conduct an affirmative inquiry ‘when the consenting party reasonably appears to have authority to consent.’ " Commonwealth v. Gray, 465 Mass. 330, 343 (2013), quoting Lopez, 458 Mass. at 401-402. Here, there were no "contrary facts," see Santos, 465 Mass. at 695, that would have triggered a duty to inquire further; everything that was relayed by the dispatcher from the 911 call was consistent with what the wife told the officers upon arrival.
Next, the defendant argues that the motion judge relied on inadmissible evidence in deciding the motion to suppress. See Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 451 (2005). Specifically, the defendant challenges the judge's reliance on the 911 call and the dispatch report (CAD sheet) -- both of which were admitted at the suppression hearing without objection. The defendant overlooks that " ‘the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.’ United States v. Matlock, 415 U.S. 164, 172-173 (1974). See Mass. G. Evid. § 1101(d) (2020). When deciding a question of admissibility at a hearing on a motion to suppress, ‘the court is not bound by the law of evidence, except that on privilege.’ Mass. G. Evid. § 104(a) (2020) .... At a hearing on a motion to suppress, judges should ‘err on the side of considering more, not less, information’ and then determine the credibility, reliability, and weight to be applied to that evidence." Commonwealth v. Evelyn, 485 Mass. 691, 706 (2020). Accordingly, the judge did not err in considering or admitting the recording of the 911 call or the CAD sheet.
Finally, the defendant argues that the judge failed to find sufficient facts to justify the removal of a "hard object" from the defendant's pocket during the patfrisk and that the protective sweep was unjustified and impermissibly broad. A patfrisk is permissible where "the initiation of the investigation by the police was permissible in the circumstances, and ... the scope of the search was justified by the circumstances.... [T]here is no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails" (quotation and citation omitted). Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). A patfrisk must be based on "specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Id. at 271. Here, the officers were told that there was a firearm in the apartment and knew that the defendant had a history of violent and firearm-related offenses. His wife reported a history of domestic abuse, and was palpably in fear of him when she called the police and when the officers arrived. In the circumstances, it was eminently reasonable for the officers to pat frisk the defendant when he responded to the door of the apartment, and to remove the hard object (which turned out to be a loaded magazine) from his pocket.
The defendant also argues that there were insufficient facts that the officer who performed the patfrisk -- who did not testify -- could tell that the hard object was contraband by plain feel. The defendant did not raise the plain feel doctrine at the motion to suppress hearing and has waived the issue.
There are several flaws with the defendant's argument regarding the protective sweep. First, as the defendant acknowledges, the police were justified in conducting a protective sweep of the apartment to determine whether others were present. More importantly, the officers did not recover any evidence from the protective sweep and so there was nothing to suppress as a result. Third, opening the coffee table drawer to look for the gun was the very search the wife consented to. See Commonwealth v. Ortiz, 478 Mass. 820, 824 (2018) ("A search that is based on consent may not exceed the scope of that consent").
As the Commonwealth notes, the defendant did not object to the search and so did not vitiate the victim's consent. See Commonwealth v. Ware, 75 Mass. App. Ct. 220, 232 (2009) (consent remained valid where "the record here contains no evidence of any unequivocal protest or objection").
2. Motion to sever. The defendant argues that the judge erred in not granting his motion to sever the domestic violence charges from the firearm charges. A judge may join related offenses unless doing so would not serve the best interests of justice. Commonwealth v. Montanez, 410 Mass. 290, 303 (1991). The determination whether joinder is appropriate is committed to the sound discretion of the trial judge. Id. Joinder is appropriate where the offenses "constitute a single line of conduct, grow out of essentially one transaction, and would be proved by substantially the same evidence." Commonwealth v. Gallison, 383 Mass. 659, 671 (1981). The defendant bears the burden of proving that the offenses were unrelated and that the prejudice from joinder prevented him from obtaining a fair trial. See Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).
The trial judge did not abuse her discretion in denying the motion to sever. To begin with, the firearm-related charges (which were all based on events that occurred on June 19, 2018) were closely related to the charge based on events of three days earlier. The defendant's threat to kill his wife by putting a bullet through her head after she had a flat tire tied directly to the discovery of the shotgun in the trunk of the car. Moreover, all of the charges involved the same victim, and evidence of the nature of the relationship of the parties would have been admissible in all of the domestic violence-related offenses. That evidence would also have been admissible on the firearm charges to the extent that it bore on how and why the weapons were discovered and located.
Further, the defendant does not identify any particular prejudice from the joinder of the charges. Instead, he argues that the joinder generally bolstered the wife's credibility because facts pertinent to one charge could be used to corroborate another. But the judge instructed the jury that they were to view each indictment individually and could only find the defendant guilty if the Commonwealth proved each element beyond a reasonable doubt. See Commonwealth v. Donahue, 430 Mass. 710, 718 (2000) ("We presume that a jury understand and follow limiting instructions, and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless" [citations omitted]). Moreover, the jury ultimately acquitted the defendant of half of the domestic violence charges: the two counts of assault and battery by means of a dangerous weapon and the charge of making threats. "[D]iscernment by the factfinder in assessing the evidence is a strong indication that a misjoinder of offenses has not resulted in any actual prejudice to the defendant." Gray, 465 Mass. at 337, quoting Commonwealth v. Green, 52 Mass. App. Ct. 98, 103 (2001).
3. Unpreserved evidentiary errors. Finally, the defendant argues that (i) the 911 call was improperly admitted as an excited utterance, (ii) the wife should not have been referred to as the victim, and (iii) that references to the witness protection program and the defendant being in jail were improper. The second and third points are "bald assertions of error, lacking legal argument and authority" and do not rise to the level of appellate argument. Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993). See Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000) (conclusory statements in brief do not rise to level of appellate argument). Thus, we consider only the defendant's argument concerning the 911 call.
"A statement qualifies as a spontaneous utterance if there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer and the declarant's statement was a spontaneous reaction to the occurrence or event and not the product of reflective thought" (quotations and citations omitted). Commonwealth v. Simon, 456 Mass. 280, 296 (2010). The judge had broad discretion to determine whether the 911 call qualified as an excited utterance. Id. After listening to the recording of the 911 call, the judge found that the wife was under the sway of the "very distressing" situation of being in her apartment with the defendant, who had threatened three days earlier to put a bullet in her head if she came home, and who had showed her that he had a firearm in the apartment. We have listened to the recording of the 911 call, which throughout captures the wife's palpable fear and anxiety. In the circumstances, the judge did not abuse her discretion in admitting the 911 call as an excited utterance.
Judgments affirmed.