Opinion
14-P-1714
12-18-2015
COMMONWEALTH v. MCGREGORY MENEUS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, after a jury-waived trial in the Cambridge District Court, of carrying a loaded firearm without license, carrying a firearm without a license, and possession of a firearm without a firearm identification card. The defendant's sole contention on appeal is that his pretrial motion to suppress was wrongly denied, as was his motion for reconsideration of that denial. We affirm.
Background. The only witnesses at the hearing on the motion to suppress were Cambridge police Officers Janie Munro and David Porter. "Where, as here, it is evident that the motion judge has found the testifying police officer[s] . . . to be entirely credible, we refer not only to the motion judge's findings but also to the officer[s'] uncontroverted testimony supporting those findings." Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 43 (2002).
The hearing on the motion to suppress took place on January 16, 2009, and April 13, 2009. While assembling the record for the defendant's appeal, appellate counsel was advised that the recording of the January 16, 2009, proceeding could not be located and therefore could not be transcribed. The testimony on that date consisted of Officer Munro's direct examination. Counsel moved to perfect the record pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 934 (1979); a hearing was held; and the motion judge made findings as to the content of Munro's testimony. We summarize the facts using the judge's findings on the reconstructed record, as well as the testimony from the remainder of the hearing, which was transcribed.
At approximately 10:50 P.M. on April 29, 2006, Munro and Porter arrived on Windsor Street near the Washington Elms housing complex in East Cambridge (complex), in response to a dispatch regarding gun shots fired. Near the intersection of Windsor and Washington Streets, and in front of the complex, the officers spoke with the complaining witness Debra Santos.
"Ms. Santos told the officers that someone had shot at her car as she drove past the area. She said that immediately after she heard the shots, she saw a group of young black males running into the Washington Elms project from the location on Windsor Street where she was then speaking to the officers. Officer Munroe [sic] looked down [Washington S]treet and saw a group of between four and six young black males less than a half-block away, looking out at them from a gate leading into [the complex]."
The officers considered the area to be "high-crime" ; indeed, other officers were in the area responding to other calls. Thus, when they "approached the group and asked whether they knew anything about gunshots being fired in the area" and received a negative response, "[t]he officers asked permission to pat-frisk the individuals for officer safety." While the group was "unhappy" about the officers' request, "they stated yes." The officers began to frisk other individuals when they noticed the defendant moving away from the group. Porter walked toward the defendant, who turned around and ran. Porter yelled, "Stop," and then pursued the defendant when he did not. The officer chased the defendant into the complex and then back out onto Windsor Street, where he was intercepted by Santos. Porter was able to pull the defendant to the ground, while Munro pat frisked him and found no weapons. As the officers pulled the defendant to his feet they saw a handgun on the ground where he had been laying. "They arrested the [d]efendant and seized the gun."
Discussion. 1. Standard of review. "When reviewing a motion to suppress evidence, we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). "[T]he clear error standard is a 'very limited form of review,'" wherein we defer to the findings of the motion judge who heard the testimony and observed the witnesses. Commonwealth v. Sanna, 424 Mass. 92, 97 (1997), quoting from Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990).
2. Erroneous findings. We agree with the defendant that the judge's subsidiary finding, that "[t]he Washington Elms complex was considered a high crime area, and had been the scene of numerous shootings, robberies, and arrests," is clearly erroneous because there was no evidence regarding other shootings, robberies, or arrests. The error is of no moment, however, because Munro's testimony that it was a high crime area, and Porter's testimony that officers were responding to other calls in the area at the same time they were responding to Santos, support the judge's ultimate finding that "[t]his was a known high-crime area." The defendant's remaining challenges are to the judge's findings regarding the weight and credibility of the testimony, and we defer to the motion judge. See ibid.; Commonwealth v. Catanzaro, supra at 52 n.11.
3. Denial of motion to suppress. The judge did not make a finding as to when the defendant was seized. In support of his motion to suppress, the defendant argued that he was seized when Porter yelled, "[S]top." In his motion for reconsideration and now on appeal, the defendant argues that he was seized when the officers began pat frisking the group. Although "[d]etermining the precise moment at which a seizure occurs is critical to resolving the issue of suppression," Commonwealth v. Sykes, 449 Mass. 308, 310 (2007), we need not decide whether the defendant was seized when he "decline[d] to submit to an official show of authority by engaging in flight," or "when, having been accosted by law enforcement officials," he remained with the group while they submitted to patfrisks. Commonwealth v. Stoute, 422 Mass. 782, 785 n.5 (1996). We conclude, based upon the facts found by the judge, that at either moment, the officers "had an objectively reasonable suspicion of criminal activity, based on specific and articulable facts," Commonwealth v. Barros, 435 Mass. 171, 176 (2001), that the defendant "was committing, had committed, or was about to commit a crime." Commonwealth v. Martin, 467 Mass. 291, 303 (2014).
The officers approached the group in response to a report from a known eyewitness "of her recent, firsthand observation." Commonwealth v. Depina, 456 Mass. 238, 243 (2010). See and compare Commonwealth v. Wren, 391 Mass. 705, 707 (1984) ("Information related by a reliable person can be sufficient to establish a reasonable suspicion") with Commonwealth v. Barros, supra at 176-177 (no reasonable suspicion where officers acted on anonymous tip). Those observations concerned the discharge of a firearm in a dense urban area; a matter that "deserves the immediate attention of law enforcement officials." Commonwealth v. Stoute, supra at 790. See Commonwealth v. Depina, supra at 247 ("The gravity of the crime and the present danger of the circumstances may be considered in the reasonable suspicion calculus"). The defendant's group was "[l]iterally right around the corner" from where the officers were responding to Santos moments after she reported shots fired, see Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 558 (2002) ("close physical proximity to the crime scene coupled with closeness in time [indeed, within moments of] the report of shots having been fired" contributed to the officers' reasonable suspicion); it was late at night in a high crime area, see Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007) ("judge appropriately considered the high crime setting of the encounter, together with other factors, to conclude that the officers had reasonable suspicion"); and, once the officers began pat frisking other individuals and did not locate a gun, "the officers had reasonable suspicion to stop the defendant for the purpose of conducting a threshold inquiry." Commonwealth v. Stoute, supra at 790. See Commonwealth v. DePeiza, supra at 374 ("A patfrisk is constitutionally permitted when conducted by officers who reasonably believe the subject to be armed and dangerous"); Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010) (police may conduct a protective frisk where they have "reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous").
We recognize that "the stop is lawful only if the Commonwealth establishes . . . that the description of the suspect conveyed by the dispatch had sufficient particularity," and that Santos's description of the suspects was very general. Commonwealth v. Depina, 456 Mass. 238, 243 (2010). However, we think "that it was reasonable for the police to suspect" the defendant, who matched the description, because he was part of the group that Santos identified as having immediately run away from the scene of the shooting. Ibid. See Commonwealth v. Johnson, 88 Mass. App. Ct. 705, 711 (2015) (holding that, "even where there is no particularized description of the suspect, the police may nonetheless stop someone when circumstances make the seizure reasonable under the Fourth Amendment and art. 14").
While "individual elements of the situation [may] not have been enough to warrant police intervention" in this case, Commonwealth v. Fisher, 54 Mass. App. Ct. at 44, we must "view the circumstances as a whole." Commonwealth v. Stoute, 422 Mass. App. Ct. at 790. We agree with the judge that the officers' actions were constitutionally justified, "because the gunfire accentuated the menace involved in pursuit, demonstrating not only that the suspect being sought was armed and dangerous, but also was ready, willing, and able to use that firepower, having just discharged the weapon." Commonwealth v. Doocey, supra at 553. In such circumstances, "there is an edge added to the calculus upon which that reasonable suspicion may be determined." Id. at 557.
Judgments affirmed.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 18, 2015.