Opinion
14-P-962
03-14-2016
COMMONWEALTH v. ERNEST POLITE.
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, Ernest Polite, appeals from a guilty verdict on one count of receiving stolen property under $250, G. L. c. 266, § 60, after a jury trial in the West Roxbury Division of the Boston Municipal Court. On appeal, the defendant argues that (1) a motion judge improperly admitted evidence obtained from a stop unsupported by reasonable suspicion, (2) a second motion judge improperly admitted a statement made by the defendant at the police station, and (3) the trial judge imposed an improper sentence. We affirm.
The judge allowed the defendant's motion for a required finding of not guilty on an additional charge of trespassing, G. L. c. 266, § 120.
The defendant brought two motions to suppress evidence at different stages during the pretrial phase of the proceedings; the second motion was brought shortly before trial and resulted in a conversion of the scheduled trial date to a motion hearing. Accordingly, the motions were heard by two separate judges, and a third judge presided at trial.
We summarize the findings and rulings of the motion judges and the trial judge respectively, as they pertain to the issues on appeal. On December 24, 2011, a United States postal worker noticed a light-colored Ford Explorer automobile following him on his delivery route in the Jamaica Plain section of Boston for most of the morning. After delivering a package to 11 Bourne Street, the postal worker observed the same vehicle parked nearby with the driver's side door open. He also observed someone leaving the porch of 11 Bourne Street and walking towards 15 Bourne Street with the package he had just delivered. Suspecting theft, the postal worker unsuccessfully attempted to block the Explorer with his mail truck; the man seen on the porch was able to drive off in the Explorer. The postal worker later found the Explorer parked outside 60 Eldridge Street, one block away from 11 Bourne Street. The postal worker testified that the man was "darker-skinned," "between 5'8" and 6'" tall, between 270 and 300 pounds, and wearing dark green pants, a thick jacket, and a "skully type cap." This information was then provided to the police, along with a description of the car and the license plate.
There were no material differences between the evidence adduced at either motion hearing or at trial.
After observing 60 Eldridge Street for approximately an hour, the police observed a woman exit the house with the defendant, who matched the description given by the postal worker. The woman got into a car parked behind the Explorer and drove off with the defendant in the front passenger seat. The police stopped the car and engaged both the driver and the defendant in a three to five minute conversation. During this conversation, the defendant stated that he was at the scene of the theft and observed someone go onto the porch and remove the package. The defendant then stated that he himself had taken the package and placed it in the bushes across the street. As a result of the conversation, the police detained the defendant for between twenty and thirty minutes so that the postal worker could arrive for a showup. The postal worker identified the defendant as the man on the porch. Thereafter the defendant was arrested.
When apprehended, the defendant was not wearing the clothing described by the postal worker. The description of the defendant the police were seeking was: "a black male, probably 35 years of age, 5'10", roughly about 250 pounds, wearing a black cap, a green jacket and . . . blue jeans."
The first motion judge found that the defendant was not properly Mirandized and suppressed these statements.
Evidence obtained from the stop. The defendant contends that his motion to suppress certain evidence should have been allowed because the police did not have reasonable suspicion to stop and detain him. See, however, Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). We disagree. We discern no error in the first motion judge's conclusion that the following factors created a reasonable suspicion: (1) the matching physical description of the defendant and the man on the porch, (2) the spatial proximity of the defendant to the Explorer, identified by the license plate, and his proximity to the crime scene, and (3) the temporal proximity between the time the postal worker observed the man on the porch and the time the defendant was stopped by the police. See Commonwealth v. Redd, 50 Mass. App. Ct. 904, 906 (2000). The judge credited "the [postal worker's] testimony that he got a good look at the individual" and found that it was reasonable for the police to detain the defendant for twenty to thirty minutes so that the postal worker could arrive to conduct an identification. See Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970) ("An expeditious collateral inquiry which might result in the suspects' arrest or prompt release is not unreasonable when done to meet the practical demands of effective criminal investigation and law enforcement" [quotation omitted]).
The police performed a search of the defendant incident to the arrest, during which the car keys for the Explorer were discovered in his pants pocket. The defendant seeks to suppress the car keys and the showup identification.
In our review of "the trial court's action on a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error. We also show substantial deference to the judge's legal conclusions, but independently review the application of constitutional principles to the facts." Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 42-43 (2002) (quotations omitted).
The defendant argues there was no matching physical description as he was wearing different clothing when apprehended compared to the clothing described by the postal worker. We note that the immutable physical characteristics -- skin color, approximate height, and approximate weight -- all match the postal worker's description.
The defendant does not argue that the showup was unduly suggestive. The showup was conducted with the postal worker in a police car with the windows up, approximately four to five feet away from the defendant. The police informed the postal worker that they "may or may not have" found the suspect. The postal worker observed three individuals in winter jackets, hats, and regular clothing, and testified that they had "[a]ll the same build, skin color. A lot of them looked the same, for the most part." The men in the showup were standing on the sidewalk without handcuffs. The day was sunny and there were no visual obstructions. See Commonwealth v. Martin, 447 Mass. 274, 280 (2006).
Statements obtained at the police station. After being arrested and transported to the police station, the defendant voluntarily told a police officer that he wanted to talk. The officer properly administered a Miranda warning and a digital recording notice. During the recorded interview, the police officer told the defendant that someone witnessed the defendant with the package and that the police had a video tape that possibly showed the defendant taking the package. The second motion judge allowed the recorded statements to be admitted for the limited purpose of showing that the defendant was driving the Explorer and that he was at the scene holding the package. The defendant now asserts that the statements made at the police station are fruit of the poisonous tree of the earlier non-Mirandized statements. See note 5, supra.
Statements made following a violation of a defendant's Miranda rights are presumed tainted. Commonwealth v. Osachuk, 418 Mass. 229, 235 (1994). "This presumption may be overcome by showing that either: (1) after the illegally obtained statement, there was a break in the stream of events that sufficiently insulated the post-Miranda statement from the tainted one; or (2) the illegally obtained statement did not incriminate the defendant, or, as it is more colloquially put, the cat was not out of the bag." Ibid.
"The focus and ultimate goal of undertaking either or both lines of analysis is a determination of the voluntariness of the later confession." Commonwealth v. Prater, 420 Mass. 569, 581 (1995). Although a showing of both prongs is not required, the latter prong is useful in "help[ing] the court determine if the later statements made by a defendant are voluntary or the result of coercion." Commonwealth v. Harris, 75 Mass. App. Ct. 696, 699 (2009).
Even were we to agree that the earlier statements were elicited in violation of the defendant's Miranda rights, there was no error in the denial of the second motion to suppress. The statements at the police station occurred approximately two hours after the initial non-Mirandized statements, involving a change of location at which the defendant was left alone for almost one-half hour. He was interviewed by an officer who had been present on the scene, but not one with whom the defendant had spoken previously. See Commonwealth v. Harris, 75 Mass. App. Ct. 696, 700 (2009) (finding a change in location and "the passage of almost two hours between the two statements and intervening circumstances . . . constituted a break in the stream of events" [quotation omitted]).
We need not address that issue in light of the hiatus between that conversation and the later statements at the police station.
Furthermore, we note that at the station the defendant approached the police officer voluntarily, saying that he wanted to talk. See id. at 701 (concluding that defendant's "decision to talk to the police was not based on a sense of futility brought on by having made previous statements" [quotation omitted]).
We conclude as well that suppression of the initial non-Mirandized statements was likely error, albeit one from which the defendant benefited.
The defendant's assertion that the trial judge erred on evidentiary grounds in allowing a portion of the recording of the statements to be played for the jury is also unavailing. The statements made in the police station were not, as the defendant contends, a mere exculpatory denial; they did not amount to "[e]xtrajudicial accusatory statements made in the presence of a defendant, which he has unequivocally denied." Commonwealth v. Womack, 457 Mass. 268, 272 (2010) (explaining that such statements are inadmissible hearsay). There was no error in admitting those statements during trial.
We have listened to the recording of the defendant's statements provided by appellate defense counsel.
Sentencing. The defendant asserts that the trial judge improperly considered the defendant's credibility during sentencing. While it is true that "[o]ur common law forbids a judge from considering a defendant's perceived perjured trial testimony in determining the punishment imposed for a criminal conviction," there is no claim of perjury here. Commonwealth v. Gomes, 465 Mass. 1003, 1003 (2013). The defendant did not testify under oath and we discern no other crime that the judge considered during sentencing. See Commonwealth v. Coleman, 390 Mass. 797, 804 (1984) (this court has no authority to review a lawful sentence; however, we may review "the penalty imposed upon a defendant who has been sentenced for a crime other than that for which he stands convicted").
We also have no authority "to review the severity or leniency of an otherwise lawful sentence which is within the limits permitted by statute." Commonwealth v. Hogan, 17 Mass. App. Ct. 186, 187 (1983). See Commonwealth v. Coleman, 390 Mass. 797, 804.
Judgment affirmed.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 14, 2016.