Opinion
14-P-1726
04-13-2016
COMMONWEALTH v. JASON J. SCHULTZ.
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, Jason Schultz, appeals from his conviction, following a jury trial in the District Court, of assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B. He claims that a motion judge erred in denying his motion to suppress the warrantless search and seizure, and that the trial judge erred in denying his motion for a required finding of not guilty. We affirm.
1. Motion to suppress. The defendant contends that the motion judge erred in declining to suppress the knife seized from him and the statements overheard by a police officer, because the officer (a) lacked probable cause to enter the yard of 17 Washington Avenue Extension and (b) should have obtained a warrant prior to entering the dwelling at that address. We first summarize the motion judge's findings of fact, which we must accept "absent clear error," and then "independently review the [motion] judge's ultimate findings and conclusions of law." Commonwealth v. Tyree, 455 Mass. 676, 682 (2010), citing Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007).
The motion judge found the following. At approximately 9:20 P.M. on May 27, 2014, Officer John Campbell was dispatched to 144 Winter Street in Hyannis to investigate an alleged assault. Upon arrival, he spoke with two Brazilian males, "who said that a white male brandishing a knife threatened or otherwise assaulted them." They advised that the white male was wearing a white tee shirt and red shorts, and indicated that he had fled toward Winter Street. The officer "immediately started going in that direction." As he approached Washington Avenue Extension, a short distance from the site of the assault, he heard a loud male voice emanating from the back deck of a residential property. Directing his investigation toward the voice, the officer walked around to the front of the property. He went through the front gate and, upon entering, "heard a back door shut and apparently people moving inside." The officer "walked up and looked through a front window where he saw the [d]efendant actually in a white tee shirt, red shorts." The window was open, and the officer heard the defendant say, "I'm going to fuck those two up. They don't know who the fuck -- who they're fucking with. I heard sirens and took off." The officer knocked on the front door and saw the defendant run to the rear of the house. The officer then "went around to the back door; [he] knocked on the back door [and the door] was opened by a Roxanne Silvia. She said she was the homeowner. She would not let the officer in." Officer Campbell said he was investigating a crime and "asked if there was a man there." Silvia denied that anyone was in her home and told the officer that he needed a warrant. "The officer -- and there was backup arriving at this point -- then entered the house. . . . Silvia tried to push the officer aside. The officers . . . joined by a couple of troopers -- started to sweep the house. Eventually, the [d]efendant was found hiding in the basement. He was [placed] under arrest. And a search revealed that he had eight pills on him and a folding knife." The motion judge also found that "there was a likelihood the defendant would flee the premises of his friend and potentially cause further injury to others if there was an attendant delay in securing a warrant."
The address of the property was 17 Washington Avenue Extension.
Contrary to the defendant's claim, the investigating officer did not need probable cause to open an unlocked gate in the chain link fence, enter the yard, and proceed along a walkway toward the front of the residence. Entering through a gate and following the normal means of access to a dwelling, upon which visitors to the property would pass on the way to the front door, does not violate the Fourth Amendment to the United States Constitution. See Commonwealth v. Pietrass, 392 Mass. 892, 901 (1984) ("If the porch were one that a visitor would naturally expect to pass through to gain access to the front door, then it would not be part of the 'curtilage' entitled to Fourth Amendment protection. Commonwealth v. Simmons, [392 Mass.] 45, 49 [1984] [driveway impliedly open to public access]").
Consistent with the motion judge's findings, the officer testified at the motion hearing that he entered through the gate, walked "halfway" up the walkway, and stood approximately twenty feet from the front of the house. At this time, the officer heard, through the open windows, the same male voice that he had heard moments earlier, describing his intention to "fuck those two up." Through a front window, the officer also saw a male in the living room wearing a white tee shirt and red shorts, which matched the description of the assailant.
"Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.'" Florida v. Jardines, 133 S.Ct. 1409, 1416 (2013), quoting from Kentucky v. King, 131 S.Ct. 1849, 1862 (2011). Accordingly, the observations the officer made at the front of the house were properly not suppressed because they were made from a location where the officer was lawfully entitled to be. See Pietrass, supra at 901 n.12 ("As long as the officer had a right to be where he was, he had a right to notice whatever was in plain view, even through a window").
Similarly, the motion judge did not err in determining that exigent circumstances and probable cause existed to enter the dwelling without a warrant and arrest the defendant for felonious assault with a knife. Under the exigent circumstances exception to the warrant requirement, "there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict." Commonwealth v. Forde, 367 Mass. 798, 800 (1975). Factors that have tended to support a finding of exigency "include a showing that the crime was one of violence or that the suspect was armed, a clear demonstration of probable cause, strong reason to believe that the suspect was in the dwelling, and a likelihood that the suspect would escape if not apprehended." Id. at 807. In evaluating a claim of exigency, we consider "the circumstances in their totality," id. at 801, and as they would appear to the officer at the time, "not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis." Tyree, 455 Mass. at 691, quoting from Commonwealth v. DeJesus, 439 Mass. 616, 620 n.3 (2003).
Here, the officer lawfully observed and heard the defendant, in the dwelling, describing the incident, and announcing his further intent to attack the victims. The incident involved a crime of violence; the officer had probable cause to believe that the man inside the residence, wearing the white tee shirt and red shorts, was the suspect who had just committed the felonious assault; and, after knocking on the door and seeing the defendant run out of the room, the officer had reason to believe that there was a likelihood that the suspect would escape, and engage in further violent criminal activity, if not apprehended. These facts amply support the motion judge's determination that exigent circumstances justified the entry into the home, as "there was a likelihood the defendant would flee the premises of his friend and potentially cause further injury to others if there was an attendant delay in securing a warrant." See Commonwealth v. Franklin, 376 Mass. 885, 899-900 (1978) (Entry into an apartment after earlier shooting was justified by exigent circumstances because "police were essentially in hot pursuit[,] . . . the alleged crime was one of violence, the alleged suspect was one who was armed, and not only was there a substantial likelihood that the suspect would escape if not apprehended, but there was no indication that the violence itself had come to a halt. . . . [I]t would be impracticable for the police to obtain a warrant, and we would speak in disregard of the safety of the police and others if we were to conclude that a warrant was necessary"); Commonwealth v. Garner, 59 Mass. App. Ct. 350, 364-366 (2003) (Entry into a dwelling justified by exigent circumstances where, inter alia, an officer had been engaged in hot pursuit of suspect with handgun; fleeing suspect jumped fence and eluded capture; other officers subsequently came upon trail of freshly made footprints in snow; and, through an open window, nine minutes after incident, officers overheard conversation about gunfire at scene of recent shooting). Therefore, the motion judge properly denied the motion to suppress.
The motion judge concluded that the dwelling at issue was a short distance from the site of the assault. Moreover, the officer overheard the defendant discussing the recent assault and his ongoing intent to cause injury. Viewed in their totality, the facts demonstrated a close temporal nexus between the crime and the entry into the dwelling.
2. Sufficiency of the evidence. The defendant claims that the trial judge erred in denying his motion for a required finding of not guilty, because the Commonwealth failed to present sufficient evidence that he had committed an assault. Although the record is unclear whether the defendant moved for a required finding of not guilty at trial, we nonetheless address his claim, as a conviction based on legally insufficient evidence would create a substantial risk of a miscarriage of justice. See Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). We review the claim under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The trial transcript reflects that an "inaudible discussion" was held at side bar at the close of the Commonwealth's case. Neither the transcript, the docket, nor the record appendix to the defendant's brief, demonstrate that the defendant moved for a required finding of not guilty.
Here, the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to establish the elements of assault beyond a reasonable doubt under common law theories of attempted battery or threatened battery. See Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010) (delineating elements of assault under common law theories of attempted battery and threatened battery). With regard to assault under a theory of threatened battery, the officer testified that he heard the defendant admit that he "was going to fuck those two up. I pulled my knife on them. They don't know who they're fucking with. Then I heard the sirens and bolted." The victim testified that he went into his house to get his own knife because he thought the defendant was going to enter his home through the window. The officer recovered the knife from the defendant. Through this evidence, a rational trier of fact could have determined that the defendant, armed with the knife, "engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat." Ibid. Similarly, the above facts suffice to support a rational trier of fact's finding of assault under a theory of attempted battery. See id. at 530 (The defendant "intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so"). There was no error.
A rational juror could have also found that the defendant's flight from the crime scene and subsequent attempt to flee from the officer provided "evidence of consciousness of guilt." Commonwealth v. Carrion, 407 Mass. 263, 277 (1990).
Judgment affirmed.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 13, 2016.