Opinion
11-P-1296
05-07-2012
COMMONWEALTH v. JASON VALLIERE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of unlawful possession of a firearm and a loaded firearm, and resisting arrest, the defendant contends that (1) the evidence of constructive possession was insufficient, (2) discovery of the firearm violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, (3) the firearm licensing statutes violate his rights under the Second Amendment to the United States Constitution, and (4) the evidence that he resisted arrest is insufficient. We affirm the firearm convictions and reverse the conviction of resisting arrest.
1. Constructive possession. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence sufficed to establish that the defendant had the knowledge, coupled with the ability and intention to exercise control over the loaded firearm found beneath the driver's seat. See Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004); Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 592-594 (2007). See Commonwealth's brief at pages 11-17. Upon approaching the illegally parked Ford Taurus, New Bedford police Officer Henry Turgeon saw the defendant look back over his right shoulder, open his eyes wide, move his mouth as though talking, then turn away quickly. The defendant leaned over, put his arms between his legs, and moved his hands near the floorboard by his ankles. He sat up with his hands empty. When Turgeon asked the defendant what he had just shoved under the seat, the defendant said, '[O]h nothing, just this blunt,' reached near the vehicle's center console, picked up a marijuana blunt, and threw it out the open driver's side window. The defendant denied that there were any weapons or drugs in the vehicle, but kept 'shifting his feet backwards.' See Commonwealth v. Barbosa, 49 Mass. App. Ct. 344, 347 (2000). Coupled with the defendant's flight from the police, this evidence sufficed to establish the defendant's constructive possession of the loaded firearm found under the driver's seat.
2. Legality of the search. Because the defendant did not move to suppress the firearm or object to its introduction at trial, the waiver doctrine precludes him from doing so on appeal. See Commonwealth v. Burnett, 428 Mass. 469, 475- 476 (1998); Commonwealth v. Robie, 51 Mass. App. Ct. 494, 499 (2001).
The claim that defense counsel rendered ineffective assistance of counsel in failing to move to suppress the firearm is unavailing because the defendant has failed to demonstrate that, if filed, such a motion likely would have succeeded. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). See also Commonwealth v. Comita, 441 Mass. 86, 91-95 (2004). Given the circumstances confronting Turgeon when he approached the illegally parked Taurus, reasonable safety concerns justified an exit order and frisk of the defendant for weapons. See Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999). Turgeon was alone, observed the defendant making furtive movements, received an implausible explanation, observed the defendant continue to shift his feet backwards, and noticed that one of the backseat passengers 'kept pushing on . . . some kind of clothing article' in the middle of the rear seat. A reasonable officer in Turgeon's position would be warranted in believing his safety was in danger. See id. at 661.
3. Constitutionality of the firearm licensing statute. The defendant's challenge to the constitutionality of the firearm and ammunition licensing statute is foreclosed by the decisions in Commonwealth v. Powell, 459 Mass. 572, 589 (2011), and Commonwealth v. Loadholt, 460 Mass. 723, 726 (2011). Because the defendant does not contend that he ever applied for and was denied a license pursuant to G. L. c. 140, § 131, he lacks standing to challenge his convictions under G. L. c. 269, §§ 10(a) and 10(n). See Commonwealth v. Powell, supra at 589-590; Commonwealth v. Loadholt, supra at 725 n.5. The defendant's challenges to those statutes would also fail because the requirement that an individual be licensed to carry a firearm outside his home does not run afoul of the Second Amendment's limited guarantee of an individual's right to bear arms within his home. See Commonwealth v. Powell, supra at 589; Commonwealth v. Loadholt, supra at 726; Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 258 (2011).
4. Resisting arrest. Viewed in the light most favorable to the Commonwealth, the evidence was insufficient to establish that the defendant resisted arrest. Even were we to assume that the police constructively seized the defendant with the intent to effect his arrest when they established a perimeter around the woods, and that a reasonable person in the defendant's position would have understood that he was under arrest, see Commonwealth v. Quintos Q., 457 Mass. 107, 109 (2010), we disagree that the defendant subjected the police to a substantial risk of bodily injury simply by refusing to emerge from the woods upon command. Compare Commonwealth v. Montoya, 457 Mass. 102, 105-106 (2010) (substantial risk of causing injury where defendant fled police in dimly lit conditions, jumped fence, and plunged twenty-five feet to shallow canal).
The Commonwealth appropriately concedes that the defendant's actions in resisting and fleeing the patfrisk were not sufficient to constitute resisting arrest. See Commonwealth v. Grant, 71 Mass. App. Ct. 205, 209 (2008).
We affirm the defendant's firearm convictions and reverse the conviction of resisting arrest.
Judgment on indictment for resisting arrest reversed, finding set aside, judgment to enter for the defendant. Remaining judgments affirmed.
By the Court (Grasso, Berry & Wolohojian, JJ.),