Opinion
19-P-1230
06-24-2020
COMMONWEALTH v. AKIL A. CHARLES.
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 conviction of possession of cocaine with intent to distribute, arguing that evidence obtained after a warrantless seizure of his clothing should have been suppressed. He also appeals from the denial of his motion for a new trial, which was premised on defense counsel's alleged ineffectiveness for failing to request a jury instruction on the lesser included offense of possession of cocaine. We affirm.
The defendant raises no argument on appeal regarding his conviction of possession of a large capacity feeding device.
Motion to suppress. The facts relating to the motion to suppress are not disputed. On June 16, 2016, the defendant and another man were shot in the Roxbury section of Boston. Boston Police Officer Lawrence Welch responded to the scene and saw the defendant being put into an ambulance. Welch knew that the defendant was suffering from gunshot wounds and followed the ambulance to the hospital. While Welch was in the defendant's room, medical staff took off the defendant's pants and shirt, and a nurse handed them to Welch. Although the defendant did not object, it is unclear whether he was aware of what was happening. The defendant was not then suspected of any crime.
Because there was blood on the pants, the Boston Police Department's rules and procedures required that the pants be placed in paper bags so that the blood could be dried and preserved. Before that was done, officers laid the pants out to be photographed and conducted an inventory search. In the pants pockets, they found sixteen small bags of cocaine, two bags of marijuana, and forty dollars.
Based on these facts, the motion judge denied the motion to suppress on the ground that the defendant did not have a reasonable expectation of privacy in clothing that was removed from him for the purpose of providing emergency medical attention. On appeal the parties debate the correctness of this conclusion at some length. It is not an issue we need decide, however, because the seizure of the clothing was done without a warrant and a defendant can challenge a seizure, as opposed to a search, so long as he had a possessory interest in the property that was seized. The United States Supreme Court has explained the distinction:
"[The Fourth Amendment to the United States Constitution] protects two types of expectations, one involving 'searches,' the other 'seizures.' A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs where there is some meaningful interference with an individual's possessory interests in that property."United States v. Jacobsen, 466 U.S. 109, 113 (1984). Accord United States v. Neely, 345 F.3d 366, 369-371 (5th Cir. 2003); Sheffield v. United States, 111 A.3d 611, 619 (D.C. 2015). Here, the evidence does not show, and the Commonwealth does not claim, that the defendant relinquished his possessory interest in his clothes. Thus, regardless whether the defendant had a privacy interest in the clothes, the seizure was unreasonable unless authorized by an exception to the warrant requirement. See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 48-49 (2011); Commonwealth v. Williams, 76 Mass. App. Ct. 489, 492-493 (2010).
Turning to that issue, we agree with the motion judge that the seizure was justified under the plain view doctrine. The plain view doctrine applies where "the police are lawfully in a position to view the object"; "the police have a lawful right of access to the object"; the object is "incriminating" in character or "is plausibly related to criminal activity of which the police are already aware"; and "the police [came] across the object inadvertently." Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307 (2010). These requirements are met here.
The motion judge rejected the Commonwealth's argument that the seizure was justified by exigent circumstances, and the Commonwealth does not renew that argument on appeal. We note that there could have been exigent circumstances if the need to preserve the blood was so urgent that it would have been impractical to get a warrant, see Williams, 76 Mass. App. Ct. at 492, or if the clothes could have disappeared from the hospital in the time it would take to get a warrant. Cf. Jones v. State, 648 So. 2d 669, 676 (Fla. 1994) (no exigent circumstances where clothes could have been safeguarded by officer or hospital security while warrant was obtained). But the Commonwealth did not offer evidence proving that either exigency existed.
The issue is controlled in all material respects by Fortuna. In Fortuna a detective responded directly to the hospital after receiving a report that a gunshot victim (the defendant) was en route. See 80 Mass. App. Ct. at 46-47. While interviewing the defendant, the detective saw soot on his clothes, which the detective recognized as incriminating in nature. Id. at 47. Hospital staff bagged the clothes and offered the bag to the detective, who accepted it despite not having a warrant. Id. On these facts we concluded that the plain view doctrine authorized the warrantless seizure of the clothes. Id. at 49.
The facts in this case are materially similar. Welch was lawfully in the hospital to investigate the shooting, and hospital personnel handed him the clothes immediately after removing them from the defendant. Cf. Neely, 345 F.3d at 371 (plain view doctrine did not apply where hospital had already bagged clothes and placed them in storage). The blood on the pants, if not plainly incriminating, was "plausibly related to criminal activity of which the police [were] already aware." Sliech-Brodeur, 457 Mass. at 306-307. As a detective testified at the hearing, the blood could "be the victim's blood" but could "also be the suspect's blood," which is why it must be "safeguard[ed]" and "check[ed]." See Sheffield, 111 A.3d at 620-621 ("It was readily apparent that the bloody clothes were evidence of a crime, regardless of whether [the defendant] was a victim or a suspect"). See also United States v. Davis, 657 F. Supp. 2d 630, 640 (D. Md. 2009) (similar). Furthermore, Welch came upon the bloody clothes inadvertently when they were removed from the defendant at the hospital. Although the defendant argues that the discovery was not inadvertent because Welch followed the ambulance to the hospital intending to investigate the shooting, that argument is foreclosed by Fortuna. "While it is true that [Welch] expected to find evidence of the shooting when he arrived at the hospital, he had no obligation to get a search warrant before coming to a neutral location to interview the apparent victim." Fortuna, 80 Mass. App. Ct. at 49 n.5. Cf. Commonwealth v. Balicki, 436 Mass. 1, 14 (2002) ("anticipation of finding some additional contraband or other evidence of criminality" does not negate inadvertence).
The Commonwealth contends that the inadvertence requirement should not apply outside the search warrant context. We do not reach this issue.
We thus conclude that, as in Fortuna, the seizure of the defendant's clothing was lawful under the plain view doctrine. And once the clothing was lawfully seized, the police were "authorized to conduct an inventory search without a warrant." Commonwealth v. Abdallah, 475 Mass. 47, 51 (2016). The Commonwealth presented evidence that the inventory search was conducted pursuant to the Boston Police Department's written inventory policy, and the defendant does not challenge the propriety of the search. The defendant's motion to suppress the items found in his pants pockets was therefore properly denied.
Williams, 76 Mass. App. Ct. at 493, on which the defendant relies, is not to the contrary. Because the parties there only "briefly refer[red]" to the plain view doctrine and did not raise it to the judge, we declined "to discuss whether the evidence was in 'plain view' and . . . could have been taken . . . without the police having to obtain a warrant." Id.
Motion for new trial. Neither party asked the trial judge to give an instruction on the lesser included offense of possession of cocaine. The Commonwealth concedes that the defendant would have been entitled to such an instruction, had he requested it. The Commonwealth contends, however, that defense counsel made a reasonable strategic decision not to request the instruction. We agree.
Where an "ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was 'manifestly unreasonable when made.'" Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). Here, defense counsel's affidavit expressly states that "[t]he decision not to request a jury instruction on the lesser included offense of possession . . . was a strategic decision that was made after consultation with the defendant." The affidavit further states that "immigration[] issues were an important part of that decision" -- that is, because even a conviction of simple possession would make the defendant deportable, counsel decided to pursue an all-or-nothing approach and argue for "acquittal on the indictment charging possession with intent to distribute."
Defense counsel's strategy was not manifestly unreasonable. As the motion judge (who was also the trial judge) found, "it was clear from the case proceedings that [the defendant] sought to avoid any conviction for immigration purposes." It was thus entirely rational for defense counsel not to request the lesser-included instruction, especially given the strength of the evidence on possession, and to focus instead on showing why the Commonwealth failed to prove that the defendant had the intent to distribute. See Commonwealth v. Glover, 459 Mass. 836, 844 (2011) (not manifestly unreasonable for counsel to forego theory that "at best could yield conviction of [lesser included offense]"). While the defendant claims that he was already facing immigration issues prior to the case, and that a conviction of possession "would only be a small mark" on his record, counsel explained in his affidavit that the defendant's "highest priority was avoiding incarceration" because "he believed that if he was taken into custody then it would make it easier for [United States Immigration and Customs Enforcement] to locate him." The trial judge was therefore well within his discretion to conclude that counsel made a rational tactical decision not to request the lesser-included instruction. See Kolenovic, 471 Mass. at 672-673, quoting Commonwealth v. Lane, 462 Mass. 591, 597 (2012) ("Where, as here, the motion judge is also the trial judge, we give 'special deference' to the judge's findings of fact and the ultimate decision on the motion").
The defendant also claims that, even if defense counsel's all-or-nothing strategy was reasonable, it was manifestly unreasonable for him to then argue in closing that the jury should find the defendant guilty of simple possession. Specifically, the defendant challenges the following portion of the closing:
"So he had personal use right there, and it's powder, they told you. The prosecution cannot prove beyond a reasonable doubt that [the defendant] possessed this gun, or this cocaine, with the intent to distribute because he didn't. And I ask you to find him guilty of simple possession of cocaine. That's what he did. It's a crime. He should be punished for it. And I ask you to find him guilty of only that."According to the defendant, by telling the jury to return a guilty verdict of simple possession when that option was not available to them, defense counsel "force[d] the jury to convict [the defendant] of the only available option, possession with intent to distribute."
While defense counsel did err in this respect, we conclude that the error did not deprive the defendant of a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Earlier in his closing, counsel argued at length that the Commonwealth failed to prove that the defendant had the intent to distribute. And immediately after the closing, the trial judge asked to see the attorneys at sidebar, noted that the Commonwealth had not requested a lesser-included instruction, and gave the jury the following curative instruction: "[T]here will not be a charge of simple possession of cocaine. [T]he . . . charge is possession with intent. There's not a . . . lesser included offense." Then, in his main charge, the trial judge repeatedly instructed that the Commonwealth was required to prove beyond a reasonable doubt that the defendant had the intent to distribute. Given these instructions, and defense counsel's clear argument that the defendant did not have the requisite intent, we are satisfied that counsel's error did not prejudice the defendant within the meaning of Saferian. See Commonwealth v. Vazquez, 478 Mass. 443, 450 (2017) (jury presumed to follow judge's instructions).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Milkey, Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 24, 2020.