Commonwealth v. Regan

242 N.E.3d 631

104 Mass.App.Ct. 623

COMMONWEALTH

v.Mark Tomas REGAN.

No. 21-P-1129

Appeals Court of Massachusetts, Suffolk.

Argued May 6, 2024

Decided August 23, 2024

Homicide. Firearms. Evidence, Firearm, Fingerprints, Expert opinion. Witness, Expert. Constitutional Law, Search and seizure. Search and Seizure, Emergency, Warrant. Practice, Criminal, Instructions to jury, Motion to suppress.

Indictments found and returned in the Superior Court Department on May 15, 2014.

A pretrial motion to suppress evidence was heard by Mary K. Ames, J., and the cases were tried before Jeffrey A. Locke, J.

Joanne T. Petito, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Hodgens, & Toone, JJ.

TOONE, J.

₆₂₃Because the victim, Mark Regan, Sr., never missed work, his coworkers were alarmed when he did not show up one ₆₂₄morning. Calls to his phone went unanswered, and snow and ice on his car went uncleared. After family and neighbors raised additional concerns about his age and health, police officers entered his house through a second-floor window and found his bloodstained body on the floor. They also encountered the defendant, the victim’s son, who shares his name. After obtaining a warrant, the officers searched the house and found a loaded revolver with latent fingerprints that, according to the Commonwealth’s expert, matched those of the defendant.

A Superior Court jury found the defendant guilty of murder in the second degree, unlawful possession of a firearm, and unlawful possession of ammunition. On appeal, the defendant argues that (1) the motion judge erred by denying his motion to suppress the evidence obtained from the home because the officers’ warrantless entry violated the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, (2) the trial judge erred by allowing certain unobjected-to testimony by the Commonwealth’s fingerprint expert, and (3) the Commonwealth did not meet its burden of proof for the unlicensed firearm and ammunition charges.

On the first issue, we conclude that the officers had an objectively reasonable basis to believe that the victim was in his house and in need of emergency assistance. Although the police may no longer rely on the community caretaking doctrine as a standalone justification to enter a home without a warrant, see Caniglia v. Strom, 593 U.S. 194, 196, 141 S.Ct. 1596, 209 L.Ed.2d 604 (2021), the emergency aid doctrine remains a valid exception to the warrant requirement. On the second issue, we conclude that while certain statements by the expert may have overstated the accuracy of fingerprint comparisons, they did not result in a substantial risk of a miscarriage of justice. Accordingly, we affirm the defendant’s conviction of murder. On the third issue, we vacate the defendant’s firearm and ammunition convictions pursuant to the Supreme Judicial Court’s decisions in Commonwealth v. Guardado, 491 Mass. 666, 206 N.E.3d 512 (2023) (Guardado I), and Commonwealth v. Guardado, 493 Mass. 1, 220 N.E.3d 102 (2023) (Guardado II), cert. denied, U.S. Supreme Ct., No. 23-886, — U.S. —, 144 S.Ct. 2683, — L.Ed.2d — (June 24, 2024).

Background. We first summarize the facts found by the motion judge in her memorandum of decision denying the defendant’s motion to suppress. The victim worked at FedEx in Needham and never missed work or failed to answer his cell phone. After he did not arrive for his morning shift on March 12, 2014, coworkers ₆₂₅called him repeatedly, but there was no answer. After the victim failed to arrive for his afternoon shift, his supervisor called 911. He informed the police that the victim was sixty-six years old and his absence was "out of character," expressed concern that the victim might be ill although he was not aware of specific medical problems, and asked them to perform a wellness check.

On the morning of March 14, Boston police Officer Stephen Parenteau received a radio call asking him to conduct a wellness check at the victim’s home after an off-duty officer, whose brother was another of the victim’s colleagues, raised concerns about his absence and unspecified medical issues. Two other police officers were outside the victim’s house when Parenteau arrived. One neighbor told the officers that he had not seen the victim in a couple of days. Another neighbor reported that over the past few nights she had not seen lights or other signs of activity in the house. The officers knocked and rang the doorbell but received no answer. Inspecting the perimeter of the house, they did not see any unlocked or damaged doors, but there was a pile of mail between the storm and main front doors. The victim’s car was parked in front of the house and covered with snow and ice from a storm that had ended the morning before.

The victim’s brother arrived around 8:30 a.m. The brother was concerned about the victim’s health, but did not recall whether he discussed those concerns with the officers outside the house. The brother urged the officers to enter the home, but he did not have a key. The officers waited until their patrol supervisor authorized them to enter, and then used a ladder on the side of the house to enter through an unlocked second-floor window. They saw the victim’s body in the hall, partially wrapped in a bed sheet, with bloodstains on his body and the floor. After they called for emergency medical services, the defendant appeared. Wearing a T-shirt and underwear, he identified himself as the homeowner’s son and said he had been in the attic because he was frightened. The officers took the defendant to police headquarters and sealed the scene until a search warrant was approved.

At trial, evidence was presented that only two of the four bedrooms appeared to be lived in, and in one of those bedrooms the police found live .22 caliber cartridges, spent .38 caliber cartridge casings, and papers showing the defendant’s name. They also found a .38 caliber Charter Arms revolver hidden in the insulation under the floorboards of the attic. A ballistics expert testified that a bullet fired from the revolver matched the projectiles₆₂₆ recovered from the victim’s body. A police criminologist testified that three latent fingerprints were found on the revolver and two of them matched the defendant’s fingerprints.

[1, 2] Discussion. 1. Motion to suppress. Reviewing a ruling on a motion to suppress evidence, we accept the motion judge’s findings of fact absent clear error and defer to her assessment of the credibility of the testimony taken at the evidentiary hearing. See Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). We review de novo the application of constitutional principles to the facts as found. See Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

In denying the defendant’s motion to suppress, the judge concluded that the entry "was justified pursuant to the responsibility police have as community caretakers and the emergency aid doctrine." Two years later, the United States Supreme Court held that the police’s exercise of their duties as community caretakers is not sufficient to excuse the Fourth Amendment’s warrant requirements for entry into a home. Caniglia, 593 U.S. at 196, 141 S.Ct. 1596. In Caniglia, the petitioner got a handgun, put it on the table, and asked his wife to "shoot [him] now and get it over with." Id. The next morning, the wife asked the police to conduct a welfare check on her husband. Id. Officers encountered him on the porch, and he agreed to be transported to a hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms. Id. at 196-197, 141 S.Ct. 1596. After the ambulance left, the officers entered his home and seized the firearms. Id. at 197, 141 S.Ct. 1596. The Court ruled that the decision to remove the petitioner and the firearms from the premises was not justified by a community caretaking exception to the warrant requirement. Id. at 197-198, 141 S.Ct. 1596. Although it had in an earlier case sustained the warrantless search of an automobile in police custody for a firearm, see Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), the Court explained that there is a "constitutional difference" between vehicles and homes, and while officers are frequently called on to perform noncriminal community caretaking functions on public highways, the recognition of those tasks is "not an open-ended license to perform them anywhere." Caniglia, supra at 199, 141 S.Ct. 1596.

[3, 4] Because "the Massachusetts Constitution may not provide less protection to defendants than the Federal Constitution," Commonwealth v. DeJesus, 489 Mass. 292, 296, 182 N.E.3d 280 (2022), the community caretaking doctrine is insufficient after Caniglia to justify a warrantless entry into a home under either the Fourth Amendment or art. 14 of the Massachusetts Declaration of Rights. See ₆₂₇Gallagher v. South Shore Hosp., Inc., 101 Mass. App. Ct. 807, 823 & n.28, 197 N.E.3d 885 (2022). We therefore consider whether the other ground cited by the judge, the emergency aid doctrine, justified the officers’ entry into the victim’s house.¹

[5–7] Under the emergency aid doctrine, the police "may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Commonwealth v. Townsend, 453 Mass. 413, 425, 902 N.E.2d 388 (2009), quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Because the ultimate touchstone of the Fourth Amendment and art. 14 is reasonableness, the warrant requirement is subject to certain exceptions, and the emergency aid exception allows for warrantless entry in "an exigency or emergency" when there is a "need to protect or preserve life or avoid serious injury." Townsend, supra, quoting Commonwealth v. Knowles, 451 Mass. 91, 96, 883 N.E.2d 941 (2008).

The...