Commonwealth v. Resende

113 N.E.3d 347

COMMONWEALTH

v.Erickson RESENDE.

No. 16-P-1532

Appeals Court of Massachusetts, Plymouth..

Argued January 16, 2018.

Decided October 5, 2018.

David Rassoul Rangaviz, Committee for Public Counsel Services, for the defendant.

Johanna S. Black, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Agnes, & McDonough, JJ.

AGNES, J.

After a jury-waived trial, the defendant, Erickson Resende, was convicted of unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; unlawful possession of a large capacity firearm, G. L. c. 269, § 10 (m ) ; and unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n ). The judge vacated the conviction of possession of a firearm, G. L. c. 269, § 10 (a ), as a lesser included offense of possession of a large capacity firearm, G. L. c. 269, § 10 (m ).

On appeal, the defendant argues that his motion to suppress the firearm was erroneously denied because the police did not have reasonable suspicion to conduct the investigatory stop that resulted in his arrest. The defendant further argues that insufficient evidence was admitted to prove that he knew the firearm was loaded, or that he knew the firearm was a large capacity firearm.

We conclude that the investigatory stop was justified under the reasonable suspicion standard. We also conclude that the evidence presented to prove that the defendant knew the firearm was loaded was sufficient based on the interpretation of G. L. c. 269, § 10 (n ), set forth in Commonwealth v. Brown, 479 Mass. 600, 97 N.E.3d 349 (2018), decided while this appeal was pending. However, because the record indicates that the judge did not correctly instruct himself on the law with regard to this charge, the conviction under § 10 (n ) must be vacated. Finally, we conclude that the evidence presented to prove that the defendant knew the firearm was a large capacity firearm was insufficient based on the interpretation of G. L. c. 269, § 10 (m ), set forth in Commonwealth v. Cassidy, 479 Mass. 527, 96 N.E.3d 691 (2018), also decided while this appeal was pending. However, because the judge vacated the defendant's conviction for possession of a firearm under G. L. c. 269, § 10 (a ), solely because it was a lesser included offense of possession of a large capacity firearm under G. L. c. 269, § 10 (m ), we order the former conviction reinstated.

Background. 1. Suppression hearing. The judge found the following facts, which we supplement with additional facts based on the testimony of the only witness, Officer David Delehoy, whose testimony was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008).

At approximately 8 P.M. on October 25, 2013,¹ the Brockton police department received a 911 call relaying a potential incident of domestic violence. The caller identified himself as "Edwin" and provided his address, 139 Colonel Bell Drive, and telephone number. He stated that an individual outside was yelling for his girl friend and issuing unspecified threats, and that the individual had mentioned a "gun." The caller described the individual as a light-skinned black male wearing a green jacket and riding a bicycle.

Officer Delehoy, along with other members of the Brockton police department, responded to the area of 139 Colonel Bell Drive. Officer Delehoy was in uniform and driving a marked police cruiser. He characterized the location as a "hot spot" of violent crime and illegal activity. Upon arriving on Colonel Bell Drive, Officer Delehoy saw a light-skinned black male, later identified as the defendant, wearing a green jacket and walking through some trees toward a bicycle lying on the ground.

There were no other pedestrians or bicyclists in the immediate vicinity.

Officer Delehoy stopped his cruiser and approached the defendant. He asked whether the bicycle was owned by the defendant, and the defendant replied that it was. Officer Delehoy told the defendant to remove his hands from his pockets, and the defendant complied. Officer Delehoy then described the incident that prompted the police to respond to the area. The defendant stated that he did not hear anyone yelling and indicated that he had been speaking with his friend, "Scott." The defendant complied with Officer Delehoy's request that he produce his identification. Officer Delehoy then asked the defendant whether he had any weapons on him. In response, the defendant put his head down, lifted his jacket, and exposed the grip end of a firearm that was located in his waistband. At that point, Officer Delehoy grabbed the defendant's wrists and both parties fell into a bush. Another officer pulled the firearm from the defendant's waistband. The defendant was arrested after he failed to produce a valid license to carry the firearm.

After the defendant's arrest, Officer Delehoy was unable to locate the individual who made the 911 call. He testified that the telephone number provided by the caller did not take incoming calls and no one at the address he provided "would admit to being the person who called."

2. Trial. During trial, Officer Delehoy's testimony describing the stop of the defendant was consistent with his testimony during the suppression hearing, except that he did not characterize the location in any particular way. The trial evidence established the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Officer Delehoy informed the defendant that the police responded to that location because "somebody was yelling and they made mention of a gun."² After the defendant had been arrested, Officer Delehoy removed the magazine from the firearm and inspected the firearm to ensure that it did not contain a chambered round. The magazine contained fourteen rounds of ammunition and was capable of holding up to fifteen rounds of ammunition. At the time the firearm was removed from the defendant's waistband, the ammunition inside the magazine was not visible and only became visible when Officer Delehoy removed the magazine from the firearm. No shell casings were observed in the area where the defendant was arrested, and the defendant made no statement indicating he knew that the firearm was loaded or that it was a large capacity firearm. The defendant did not have any loose rounds of ammunition on his person. During booking, the defendant stated that "a guy" gave him the firearm because the defendant "likes guns." Photographs of the firearm, the magazine, and the fourteen rounds of ammunition was received in evidence; photocopies of these photographs are in the materials before us.

Discussion. 1. Investigatory stop. The defendant argues that the motion judge improperly denied his motion to suppress because Officer Delehoy lacked reasonable suspicion to conduct an investigatory stop. We disagree.

In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact, absent clear error, but independently review his ultimate findings and conclusions of law.

Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

"An investigatory stop is justified only if the police have reasonable suspicion to conduct the stop." Commonwealth v. Pinto, 476 Mass. 361, 363, 67 N.E.3d 713 (2017). "Reasonable suspicion exists when an officer, based on specific, articulable facts and reasonable inferences therefrom, in light of the officer's experience, has reasonable grounds to suspect ‘a person is committing, has committed, or is about to commit a crime’ (citation omitted)." Id. at 363-364, 67 N.E.3d 713, quoting Commonwealth v. Gomes, 453 Mass. 506, 511, 903 N.E.2d 567 (2009). Where an investigatory stop is based on information provided by a 911 caller, the judge must determine that the caller's basis of knowledge and veracity were sufficiently established in order to conclude that the police had reasonable suspicion of criminal activity. See Commonwealth v. Depiero, 473 Mass. 450, 454, 42 N.E.3d 1123 (2016).

In this instance, the caller's basis of knowledge was sufficiently established because he identified himself as someone living in the area where the incident was taking place, and his description of the suspect and incident taking place, as relayed through Officer Delehoy's testimony and the dispatch log admitted in evidence during the suppression hearing, permitted the judge to infer that the caller was relaying his firsthand observations to the 911 operator. Compare Commonwealth v. Wilson, 441 Mass. 390, 395, 805 N.E.2d 968 (2004).

Our review of whether the caller's veracity was sufficiently established is largely controlled by the guidance supplied by the Supreme Judicial Court in Commonwealth v. Manha, 479 Mass. 44, 46-48, 91 N.E.3d 669 (2018). In Manha, the victim called the police to report that an individual had pointed a firearm at her during a "road rage" incident. Id. at 45, 91 N.E.3d 669. The victim provided a description of the individual and his vehicle. Id. Based on that description, the police subsequently performed an investigatory stop of the defendant's vehicle. Id. The police arrested the defendant after finding a pellet gun during the course of a protective sweep of the vehicle. Id.

On appeal, the Supreme Judicial Court treated the victim as an anonymous 911 caller for the purposes of determining whether the officer had a reasonable suspicion that criminal activity was underway. Id. at 47, 91 N.E.3d 669. The court found that the caller's veracity was established where she was the alleged victim and she stayed on the line after reporting the crime, and thus she was "likely willing to be identified"; the police officer corroborated details provided by the caller, such as the vehicle's description and the driver's race and gender, before stopping the vehicle; and the caller reported a serious crime and present danger involving a firearm. Id. at 47-48, 91 N.E.3d 669.

Here, as the 911 caller provided his name, address, and...