Commonwealth v. Gorman

84 Mass.App.Ct. 482

998 N.E.2d 344

COMMONWEALTH

v.Saquan I. GORMAN.

No. 12–P–743.

Appeals Court of Massachusetts, Norfolk.

Argued April 12, 2013.

Decided Nov. 1, 2013.

Judith Ellen Pietras, Northampton, for the defendant.

Kevin J. Powers, Assistant District Attorney, for the Commonwealth.

Present: RUBIN, FECTEAU, & HINES, JJ.

RUBIN, J.

On August 13, 2009, a grand jury in Norfolk County returned indictments charging the defendant and two codefendants ¹ with a number of offenses in connection with an incident at a home in Randolph. Police had apprehended them after stopping the vehicle in which they were driving away from the scene of the incident. The defendant moved to suppress evidence gathered as a result of the vehicle stop, but this motion was denied. After a jury trial in Superior Court, the defendant was convicted as a joint venturer of home invasion, armed assault in a dwelling house, and assault by means of a dangerous weapon. He was acquitted of the charge of possession of a firearm while committing a felony.

On appeal, the defendant challenges the denial of his motion to suppress evidence obtained in connection with the vehicle stop, the sufficiency of the evidence demonstrating both his intent to commit the offenses as a joint venturer and his knowledge that the principal had a weapon, and the omission of a jury instruction that he could only be convicted as a joint venturer in the charged offenses if the Commonwealth proved he knew that the principal was armed. We hold that the defendant's motion to suppress was correctly denied, and that the evidence presented was sufficient to support the convictions. We conclude, however, that, on the facts of this case, the trial judge's failure to instruct the jury with respect to the requirement that the defendant knew that the principal was armed created a substantial risk of a miscarriage of justice. Accordingly, we reverse the defendant's convictions, and remand for a new trial should the Commonwealth decide to proceed with one.

1. Motion to suppress. We turn first to the defendant's claim that his motion to suppress evidence gathered as a result of the stop of the vehicle was erroneously denied. The defendant asserts that police lacked reasonable suspicion to seize the automobile in which he was a passenger. We accept the motion judge's subsidiary findings of fact, except when they are clearly erroneous, and we independently review the judge's ultimate findings and legal conclusions. Commonwealth v. Stephens, 451 Mass. 370, 381, 885 N.E.2d 785 (2008). In reciting the facts found by the motion judge, we supplement them with uncontested testimony from witnesses at the suppression hearing whom the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007).

On the afternoon of July 2, 2009, L.A. heard a knock at the front door of her home in Randolph. She looked outside and saw the defendant, whom she did not recognize. Although he received no response from inside the home, the defendant continued knocking on the front door. L.A. then peered out a window and saw a second man, Jovan Gordon, walking to the rear of the house. She moved to secure a glass door that led from the garage into the home, but Gordon appeared in the garage, on the other side of the door. Gordon pointed a gun at her and shouted, demanding that she open the door. She ran to her bedroom, yelling that she was telephoning the police, which she did, and the two men left. After receiving L.A.'s 911 call, police dispatch broadcast her report of the incident and her description of Gordon as a bearded African–American man in a tan shirt and khaki pants. Dispatch also indicated that the suspect had a gun.

On his way to respond in his unmarked vehicle, Randolph police Detective David Clark saw a gray Acura automobile stopped along the side of North Street, blocks from L.A.'s address. An African–American man wearing a tan jacket and carrying a bag got into the vehicle, and it pulled away. It was headed in the direction from which Clark had come. Clark made a U-turn to follow this vehicle and radioed his observations. Either during the turn or after turning around, he activated his lights.

Detective Paul Smyth, who had also been driving toward L.A.'s house in an unmarked vehicle, heard Clark's transmission and moved to intercept the Acura. Turning onto North Street from Truman Drive, he cut immediately in front of Clark's vehicle as Clark completed his U-turn. The Acura had turned off North Street and onto Liberty Street. After Smyth turned onto Liberty Street, he sighted the Acura about one hundred yards ahead. He accelerated to catch up to the Acura, and he saw a gun lying in the eastbound lane of Liberty Street. Smyth estimated that the gun was about seventy yards from where he had turned onto North Street. When he had closed to within thirty yards of the Acura, Smyth activated his lights and siren to stop the vehicle. It contained the defendant, Gordon, and a third man, who was driving. The gun, which was recovered from Liberty Street about 200 yards closer to North Street from where the Acura was stopped, was loaded. The three men were ordered out of the car and handcuffed. At that point, police took L.A. to the men's location, where she identified Gordon and the defendant. Officers arrested all three men.

An investigatory stop of a motor vehicle is appropriate when the police have “a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the ... vehicle had committed, was committing, or was about to commit a crime.” Commonwealth v. Alvarado, 423 Mass. 266, 268, 667 N.E.2d 856 (1996). A seizure has occurred if a reasonable person would have believed he was not free to leave in view of the surrounding circumstances. Commonwealth v. Smigliano, 427 Mass. 490, 491, 694 N.E.2d 341 (1998). Under art. 14 of the Massachusetts Declaration of Rights, pursuit by a police officer constitutes a seizure and therefore must be supported by, at minimum, reasonable suspicion. Commonwealth v. Stoute, 422 Mass. 782, 788–789, 665 N.E.2d 93 (1996).

The defendant contends that the Acura was seized prior to Smyth's seeing the gun in the road. He argues that the seizure was therefore based solely on Clark's observing the defendant, whose appearance did not closely match the description broadcast of Gordon, entering the vehicle. That alone, he says, could not have given police reasonable suspicion to stop the vehicle. We assume, though we need not decide the question, that if the facts were as the defendant describes, his conclusion would be correct.

The defendant argues further that even Smyth's sighting of the gun did not give rise to reasonable suspicion that the occupants of the Acura had committed a crime. With that contention, we disagree. Even though Smyth did not see the weapon being ejected from the automobile, its presence in the street shortly after the passage of a vehicle that had departed from a location close to a house where a crime committed with a gun was believed to have just occurred supports a reasonable suspicion on the part of police that the occupants of that vehicle had committed a crime.

Our analysis of the defendant's claim proceeds in two steps. First, we must determine when the Acura was seized, a question on which the defendant bears the burden of proof. See Commonwealth v. Netto, 438 Mass. 686, 697, 783 N.E.2d 439 (2003). Then we must determine whether, when that occurred, the police had discovered the gun in the road.

With respect to the first question, we conclude that the Acura was seized when Smyth turned on his lights and siren thirty yards behind the Acura on Liberty Street. As Clark completed his U-turn on North Street, during which he activated his lights and siren, Smyth cut off Clark, interposing his own unmarked vehicle between Clark's car and the Acura. At that point, Smyth's car was at least one hundred yards behind the Acura, which had taken a turn on Liberty Street, with Clark behind him even further from the Acura. When Smyth, in the lead police car, turned onto Liberty, the Acura was already more than one hundred yards down Liberty, past a slight bend. Only when Smyth's car, the one immediately behind the Acura, turned on its lights and siren was the Acura seized for purposes of constitutional analysis. Although Clark turned his vehicle around and activated his lights with the intention of catching and stopping the Acura, an officer's subjective intent is not relevant to the question whether a seizure has occurred, see Commonwealth v. Cruz, 459 Mass. 459, 462 n. 7, 945 N.E.2d 899 (2011), and there is no evidence that the Acura was in a position to see or hear officer Clark's car when he activated his lights and siren—evidence that might have supported a finding that the Acura was seized at that earlier time. See Commonwealth v. Campbell, 69 Mass.App.Ct. 212, 215, 867 N.E.2d 759 (2007) (describing another circumstance where a seizure was not effected until sirens or lights were coupled with indications to persons inside the automobile that police were pursuing or focusing their attention on that vehicle); Commonwealth v. Werner, 73 Mass.App.Ct. 97, 104, 896 N.E.2d 45 (2008).

The second question, then, is whether the police had discovered the gun on Liberty when officer Smyth activated his lights and siren behind the Acura. The motion judge's findings do not precisely delineate the time at which Smyth activated his lights and siren, but an examination of Smyth's testimony at the hearing (which the judge implicitly credited) makes clear that Smyth did not do so until after he saw the weapon.

Smyth testified that the Acura was at least one hundred yards ahead of him when he turned onto Liberty Street. He did not activate his lights and siren to stop the Acura until he was within thirty yards of the car. So, even if the Acura were not moving, which it plainly...