Opinion
13-P-1934
07-31-2015
COMMONWEALTH v. DAMIAN LEVINE.
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
Following a jury-waived trial, the defendant was convicted of possession of a sawed-off shotgun, possession of ammunition without a firearm identification card, and threatening to commit a crime. On appeal he contends that (1) his motion to suppress was improperly denied and (2) the evidence was insufficient to prove that he had the requisite ability and intent to control the shotgun and the ammunition. We affirm.
Prior to trial the Commonwealth entered a nolle prosequi for several drug related charges.
1. Motion to suppress. a. Facts. "We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing." Commonwealth v. Molina, 459 Mass. 819, 820 (2011). On the afternoon of August 14, 2010, Boston police officer Richard Medina went to 2 Hartland Street, apartment 3, in the Dorchester section of Boston in response to a 911 call. The radio dispatch indicated that the call concerned a domestic dispute and that the caller had asked the police to "hurry."
Upon approaching the landing outside of apartment 3, Officer Medina heard a female voice yelling, "Get off me, get off me." Officer Medina knocked on the door and identified himself as a police officer after which he heard a male voice say, "You called the police, I'm going to fucking kill you." Officer Medina then forced open the door and, with his gun drawn, entered the apartment. He saw a women, Susan Martin, who was crying, and a man, later identified as the defendant, Damian Levine. Officer Medina immediately ordered the defendant to the ground and conducted a patfrisk during which he recovered a pill bottle containing a rock-like substance and a knife from the defendant's pocket. The defendant was handcuffed and Officer Medina called for assistance. Officer Medina then took Martin into the bedroom to interview her outside of the presence of the defendant. Martin reported that she had argued with the defendant after he accused her of stealing heroin, but she denied that she had been assaulted. While he was speaking with Martin, Officer Medina observed syringes, plastic baggies, scales, and white powder in plain view on top of a dresser. Soon thereafter, several narcotics detectives arrived and the apartment was secured while a search warrant was obtained. During the execution of the warrant, the officers found, among other things, a sawed-off shotgun in the dresser drawer. Later that evening, upon being informed that the police had found a shotgun and that, as a result, additional charges would be forthcoming, the defendant stated, "Oh, that's been in my apartment for a long time."
On the basis of these facts, the motion judge concluded that Officer Medina's warrantless entry into the apartment was justified under the emergency exception to the warrant requirement and that his conduct thereafter was reasonable under the circumstances. She also concluded that Officer Medina's observations of narcotics paraphernalia (and drugs) in plain view established probable cause for a search warrant. In regard to the defendant's statement about the shotgun, the judge found that the defendant's remark was spontaneous and, as such, was not obtained in violation of the defendant's rights under the Fifth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights.
b. Discussion. "In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Molina, supra at 820, quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). In this case, we concur with the judge's analysis and conclusions in every respect.
The emergency exception to the warrant requirement "applies when the purpose of the police entry is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property." Commonwealth v. Lindsey, 72 Mass. App. Ct. 485, 488 (2008), quoting from Mincey v. Arizona, 437 U.S. 385, 392 (1978). "The injury sought to be avoided must be immediate and serious." Ibid., quoting from Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 841-842 (2006).
The judge properly concluded that Officer Medina had an objectively reasonable belief that entry into the apartment was required to protect Martin from immediate and serious injury. See Commonwealth v. Lindsey, supra at 488-489 (applying objective standard). Officer Medina understood that he was responding to a situation involving domestic violence and that the caller (Martin) had asked for immediate assistance, telling the 911 operator to "hurry up, he's on his way," thereby alerting the police department to a possible emergency. See Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 330-331 (2015) (officer's suspicion of domestic violence is factor to consider in determining whether emergency exists). The possibility of immediate and serious injury was confirmed when Officer Medina approached the apartment and heard the defendant state, "I'm going to kill you." See Commonwealth v. DiMarzio, 52 Mass. App. Ct. 746, 750-751 (2001), S.C., 436 Mass. 1012 (2002), aff'd in part and rev. in part on other grounds (officers lawfully acted without warrant when responding to threat of violence). The motion judge did not err in concluding that Officer Medina's warrantless entry into the apartment was justified.
As we recently observed, "[t]here is a very strong public policy in this Commonwealth against domestic violence" and "it is consistent with this strong public policy to recognize that evidence that a person requesting police assistance may have been the victim of domestic violence is a factor that police may consider in determining whether an emergency exists involving a particular individual and whether a warrantless entry is reasonably necessary to render assistance under the emergency aid exception." Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 330-331 & n.11 (2015).
We also agree with the judge's conclusion that Officer Medina had an objectively reasonable basis to order the defendant to the ground at gunpoint. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 253 (2011) (in effecting warrantless entry pursuant to emergency exception, police conduct must be reasonable under the circumstances). As we have noted, Officer Medina entered the apartment -- without assistance -- because there was reason to believe that Martin was at risk of immediate and serious harm. In addition to having reason to believe that the defendant was dangerous, Officer Medina had no way to discern in advance whether the defendant was armed. See Commonwealth v. DiMarzio, supra at 751 ("Whether, in hindsight, the officers had other possible options for safely confronting the defendant is not the question"). In these circumstances, ordering the defendant to the ground at gunpoint was a reasonable measure.
Finally, because Officer Medina made a lawful entry into the defendant's apartment, his observations of suspected narcotics and items associated with the distribution of illegal drugs in plain view established probable cause for the issuance of a search warrant and the items seized pursuant to the warrant were not the "fruit of the poisonous tree" as the defendant claims. See Commonwealth v. Lindsey, supra at 489-490.
2. Sufficiency of the evidence. The defendant was convicted of illegally possessing a shotgun and ammunition on a theory of constructive possession. As such, the Commonwealth was required to prove "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). At the close of the Commonwealth's case and again at the close of the evidence, the defendant unsuccessfully moved for a required finding of not guilty. He argues that the judge erred in denying his motions because the Commonwealth failed to prove that he had the ability and intent to exercise dominion and control over the firearm and ammunition. See id. at 656-658 (Commonwealth must proffer evidence establishing "particular link" between the defendant and firearm to permit inference that the defendant intended to control firearm) (citation omitted).
The defendant does not challenge the sufficiency of the evidence on the element of knowledge.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was sufficient to permit the judge, as fact finder, to conclude beyond a reasonable doubt that the defendant had the ability and intent to exercise control over the firearm and ammunition. The items were found in a dresser drawer which also contained men's clothing. The evidence also established that the defendant lived in the apartment. The police found mail, including a W-2 form, addressed to the defendant, and the defendant's mother owned the apartment building. From these facts the judge could have reasonably inferred that the defendant had access to the shotgun and ammunition. The judge could also consider the fact that the defendant readily acknowledged the presence of the gun in the home. See Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 626-628 (2000) (evidence linking defendant to apartment supports constructive possession of contraband found therein). The defendant's contention that the evidence also supported the conclusion that Martin or a third party possessed the contraband does not change our analysis. The Commonwealth was not required to prove that the defendant had exclusive control over the items. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846 (2010). Nor did the Commonwealth's case deteriorate with the presentation of the defendant's case. The judge was not required to credit Martin's testimony that a third person brought the shotgun into the apartment. See Commonwealth v. Delarosa, supra at 628, quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989). ("The Government . . . need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt").
Judgments affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 31, 2015.