Opinion
20-P-1140
06-15-2022
COMMONWEALTH v. ABDIRAHMAN ABDI.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury-waived trial, the defendant was convicted of unlawful possession of a firearm without a license, in violation of G. L. c. 269, § 10 (a.), and possession of ammunition without a firearm identification card (FID card), in violation of G. L. c. 269, § 10 (h) (1). On appeal, he claims that: (1) the Commonwealth failed to prove his codefendant, Cassie Vuong, voluntarily and freely consented to the search of her purse; (2) the judge abused his discretion by failing to strike the appearance of the codefendant's attorney who had previously represented the defendant; and, (3) there was insufficient evidence to support his conviction for possession of ammunition. We affirm.
Discussion.
1. Consent to the search.
The defendant claims that the Commonwealth has failed to prove that Vuong voluntarily consented to the search of her purse. We disagree.
In reviewing the denial of a motion to suppress, we "accept[] the judge's subsidiary findings of fact absent clear error, give[] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Lujan, 93 Mass.App.Ct. 95, 100 (2018), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996).
Upon their arrival at the apartment building following the 911 call, officers spoke with Vuong to see if she was okay, given the recent domestic violence incident with the defendant. At that time, Vuong told the officers that the dispute was only a verbal altercation, and that she had no knowledge of a firearm. During the officers' conversation with Vuong, the defendant was arrested on an outstanding warrant and was taken to the police station. Upon the defendant's arrest, many of the police officers who were initially present at the scene, left. Two police officers remained though to speak with Vuong to inform her of the right to seek an abuse prevention order. During this conversation, the officers asked Vuong on a number of occasions if she knew where the reported gun was located. After Vuong denied any knowledge of a gun, one officer asked if he could search Vuong's purse, to which Vuong replied, "sure," and handed him the purse. Upon opening the purse, the officer discovered a handgun, containing a magazine and a bullet in the chamber.
"[T]he Commonwealth bears the burden of proof that consent [to a search] was 'freely and voluntarily given'" (citation omitted). Commonwealth v. Buckley, 478 Mass. 861, 875 (2018). Consent is freely and voluntarily given where it is "'unfettered by coercion, express or implied'" (citation omitted)- Id. Voluntariness is ultimately a question of fact, determined by the particular circumstances of each case, and will not be reversed absent clear error by the motion judge. See id.
"While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the [consenting person] was informed of [her] right to refuse consent; the age, intelligence, and other personal characteristics of the [consenting person]; and whether the [consenting person] was in custody when consent was given" (citations omitted). Commonwealth v. Carr, 458 Mass. 295, 302 (2010) .
Here, the motion judge properly determined that Vuong's consent was voluntary, as nothing suggests that the conduct of the police officers during the search was at all coercive. See Buckley, 478 Mass. at 876. The officers' encounter with Vuong was primarily aimed at informing her of the right to seek an abuse prevention order, and any request to search Vuong's purse stemmed from the officers' inquiry into Vuong's potential fear of the defendant, and the potential danger of a firearm in light of the recent domestic violence incident. Contrary to the defendant's assertion in his brief, there existed no evidence that Vuong was intimidated by the officers' presence, nor did the judge make such a finding. See Commonwealth v. Soto-Suazo, 100 Mass.App.Ct. 460, 468 (2021) (consent voluntary where defendant's girlfriend felt neither threatened nor intimidated by police in allowing police to search her apartment). Contrast Commonwealth v. Carr, 458 Mass. 295, 303 (2010) (consent not voluntary where armed officers completely blocked room's only exit, prior to officer pronouncing his intent to conduct search). Instead, as the motion judge found, Vuong expressed her desire to tell the truth; she was calm, cooperative, and at all times clearly understood the officers' questions. See Commonwealth v. Alleyne, 474 Mass. 771, 783 (2016) (defendant's consent to search was voluntary where he was calm, cooperative, and able to converse with officer without issue).
While the officers did not inform Vuong of her right to refuse to consent to the search, this is not conclusive of whether her consent was given freely and voluntarily. See Commonwealth v. Santos, 465 Mass. 689, 698 (2013) ("'[K]nowledge of a right to refuse is not a prerequisite of a voluntary consent'" [citations omitted]).
At bottom, Vuong's consent to the search was given freely and voluntarily, such that it was the product of neither coercion, nor the mere acquiescence to a lawful claim of authority. See Buckley, 478 Mass. at 875-876 (consent was voluntary where driver was asked if she had any marijuana in car, to which she responded "she did not think so and said that [the officer] could check"). We emphasize that "[t]he judge was in the best position to assess the weight and credibility of the testimony given at the motion hearing." Carr, 458 Mass. at 303. Thus, where the judge's finding that Vuong freely and voluntarily gave consent to the search of her purse was entirely "plausible" on the record before us, we discern no error in the denial of the defendant's motion to suppress. Id.
2. Motion to strike codefendant's counsel.
The defendant also claims that the denial of his motion to strike Vuong's counsel was erroneous, where counsel previously represented the defendant on a prior firearm charge. The defendant further claims that the denial constituted structural error requiring reversal. We disagree with both claims.
"[C]riminal defendants have a right to the assistance of counsel unimpaired by loyalties to other clients" (quotation and citations omitted). Commonwealth v. Mosher, 455 Mass. 811, 819 (2010). "An actual or genuine conflict of interest . . . must be one in which prejudice is 'inherent in the situation,' such that no impartial observer could reasonably conclude that the attorney is able to serve the defendant with undivided loyalty" (citation omitted) . Id. at 819-820. Where a defendant "establishes an actual conflict of interest, he is entitled to a new trial without a further showing" (citation omitted). Id. at 819.
The circumstances in which an actual conflict of interest arise are narrow though, and have "typically been limited to[:] '[(1)] where an attorney represents codefendants with inconsistent or contradictory lines of defense; [(2)] where an attorney or an associate maintains an attorney-client or direct and close personal relationship with a material prosecution witness; or [(3)] where an attorney has business [or personal] reasons for preferring a verdict unfavorable to the defendant he or she represents'" (citation omitted). Commonwealth v. Cousin, 478 Mass. 608, 617 (2018). Here, the attorney did not represent both the defendant and Vuong in the present case. Vuong also was not a material witness to the prosecution's case against the defendant, and she did not testify at trial. Furthermore, there is nothing in the record to suggest that the attorney had any business or personal reason to prefer a verdict unfavorable to the defendant he represented, i.e., Vuong. Thus, the attorney's representation of Vuong does not fit squarely within any of these three categories for an actual conflict of interest. See Cousin, 478 Mass. at 617.
Nonetheless, a conflict of interest may still arise where "[a] lawyer who has formerly represented a client in a matter . . . thereafter represent[s] another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client" (emphasis added). Mass. R. Prof. C. 1.9 (a), as appearing in 471 Mass. 1359 (2015). In Commonwealth v. Watkins, 473 Mass. 222, 235 (2015), the Supreme Judicial Court examined whether an actual conflict of interest existed after a prosecutor previously represented the defendant as a public defender in 1986 on a probation matter, in 1988 on a robbery charge, and in 1989 on a charge of receiving stolen property and possession of controlled substances. Where none of those prior cases were substantially related to the defendant's pending murder case approximately twenty years later, and where the prosecutor acquired no facts that would aid him in the defendant's prosecution, the Court held that no actual conflict of interest existed. See Id. at 235-236.
Here, like in Watkins, the defendant's current firearm and ammunition charges are not substantially related to his prior firearm charge in 2015. See Id. The mere fact that this case involves one of the same charges as the previous firearm case, does not render the matters substantially related, particularly where the attorney was adamant that he has no information from his prior representation of the defendant which would be at all useful to Vuong's defense. See Id. See also Mass. R. Prof. C. 1.9, Comment 3 ("Matters are 'substantially related' [only] . . . if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter").
In denying the motion to strike, the motion judge implicitly credited the attorney's averment that he did not obtain any confidential information, as a result of his prior representation of the defendant, that would be relevant to his current representation of Vuong; and, we defer to such credibility determinations of the motion judge. See Mosher, 455 Mass. at 818.
Importantly, "[t]he defendant carries the burden of proving both the existence and precise character of the alleged conflict of interest" (emphasis added; citations omitted). Cousin, 478 Mass. at 617. Here, the mere fact that the defendant was uncomfortable with his former attorney now representing his former girlfriend, against these unrelated firearms charges, is insufficient. See Id. Where the defendant has failed to demonstrate an actual conflict of interest beyond mere conjecture or speculation, he has not met his burden. See id.
Nonetheless, "[w]here no actual or genuine conflict exists, an attorney's personal interests or obligations may still give rise to a potential conflict of interest" (quotations and citation omitted). Commonwealth v. Stote, 456 Mass. 213, 221-222 (2010). "If a defendant establishes only a potential or tenuous conflict of interest, however, the conviction will not be set aside unless the defendant demonstrates that the conflict resulted in actual prejudice" (emphasis added; citation omitted). Watkins, 473 Mass. at 235.
Therefore, even if we were to assume that the defendant is correct that the attorney acted under a potential conflict of interest, the defendant still bore the burden of demonstrating that any such potential conflict resulted in actual prejudice. See Id. As the attorney stated, on numerous occasions during the motion to strike hearing, that he obtained no information from his prior representation of the defendant that could be used in the present case, the defendant failed to establish actual prejudice. The lack of actual prejudice is also particularly evident where the cases of Vuong and the defendant were ultimately severed, and Vuong was not a witness at the defendant's trial. The motion judge properly denied the defendant's motion to strike the attorney's appearance.
3. Knowledge of ammunition.
Finally, the defendant claims that the Commonwealth failed to provide sufficient evidence to support his conviction for unlawful possession of ammunition where it failed to prove that the defendant knew the firearm was loaded. We disagree.
"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether j_t_ believes that the evidence at the trial established guilt beyond a reasonable doubt.' (Citation omitted.) . . . Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009). Sufficiency of the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, supra at 324 n.16; Latimore, supra at 677-678. "To convict the defendant of unlawful possession of ammunition, the Commonwealth was required to prove that the defendant knowingly possessed ammunition that met the legal definition of ammunition." Commonwealth v. Johnson, 461 Mass. 44, 53 (2011). Such knowledge may be inferred from circumstantial evidence. See Commonwealth v. Resende, 94 Mass.App.Ct. 194, 200 (2018) .
"The term 'ammunition' means, among other things, cartridges, cartridge cases, and bullets." Johnson, 461 Mass. at 53.
Here, the defendant traveled to the apartment of Vuong's friend, Gonzalez, where he forced his way through the door, with his hand in his "private area," aggressively and loudly demanding to speak with Vuong. In making his demand, the defendant told Gonzalez that he "was not taking no for an answer." Gonzalez then observed the defendant holding a firearm in his "private area," which he attempted to pull out, as he sought to enter the apartment. Upon seeing the firearm, Gonzalez frantically demanded that both the defendant and Vuong leave, as she then called the police. While the police were en route, the defendant hid the firearm in Vuong's purse, which was ultimately recovered by the police pursuant to a lawful search, and was found to contain a loaded magazine, containing eight bullets.
When analyzing whether the evidence was sufficient to support a conviction, the inferences to support such conviction "need only be reasonable and possible; [they] need not be necessary or inescapable" (quotations and citation omitted). Commonwealth v. Santos, 95 Mass.App.Ct. 791, 798 (2019). Here, it was reasonable for the judge to infer that the defendant knew the firearm was loaded when he deliberately brought the gun to Gonzalez's home, tried to forcibly enter her apartment, and aggressively demanded in a threatening manner to speak with Vuong. See Commonwealth v. Mitchell, 95 Mass.App.Ct. 406, 419 (2019) ("It is reasonable to infer that one who brings a gun to a location knows whether or not it is loaded"). See also Commonwealth v. Cooper, 97 Mass.App.Ct. 772, 774-775 (2020) (defendant deliberately obtaining firearm for "self-protective purposes," and carrying it under his arm in armpit area, supported reasonable inference that defendant knew firearm was loaded); Santos, supra at 801 ("It is certainly a reasonable inference . . . that a person who plans and participates with others in an assault on a victim by means of a handgun . . . would know whether the [firearm was] loaded before carrying out the assault" [citation omitted]). Furthermore, it was also reasonable for the judge to infer that the defendant knew the firearm was loaded where he possessed it in his "private area," near his waistband. See Resende, 94 Mass.App.Ct. at 200 ("A commonsense inference from that fact [that the firearm was found in the defendant's waistband] is that a person would check to see if the firearm was loaded before putting it in his waistband"). Contrast Commonwealth v. Grayson, 96 Mass.App.Ct. 748, 753-754 (2019) (mere possession of firearm tied inside sock and carried in waistband alone, without evidence of other circumstances such as any threats, insufficient to prove knowledge that firearm was loaded).
This case is not an instance where the judge relied upon mere "surmise, conjecture, or guesswork" to conclude that the defendant knowingly possessed the ammunition found in the firearm that was recovered by the police. Compare Commonwealth v. Ashford, 486 Mass. 450, 455-456 (2020) (Commonwealth's broad, generalized inference that drug dealers more likely to carry loaded firearm for "protection" was not a reasonable inference to prove that firearm was loaded, where defendant did not handle, use, or even threaten to use his gun). Instead, where the evidence, when viewed in the light most favorable to the Commonwealth, supports the judge's determination that the defendant knew the gun was loaded, there exists sufficient evidence to support the possession of ammunition conviction. See Latimore, 378 Mass. at 677.
Judgments affirmed.
The panelists are listed in order of seniority.