Commonwealth v. Thompson

179 N.E.3d 1123 (Table)

COMMONWEALTH

v.Harry G. THOMPSON.

20-P-864

Appeals Court of Massachusetts.

Entered: December 1, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction for carrying a firearm without a license, G. L. c. 269, § 10 (a ). The firearm was discovered during a police search of the box truck that the defendant had been driving, and which he had crashed into a telephone pole. On appeal the defendant raises a host of arguments, including (1) that the judge erred by denying the defendant's motion to suppress the firearm, where the Commonwealth had tested the firearm in violation of a discovery order of the court; (2) that there was insufficient evidence that the defendant constructively possessed the firearm, (3) that the firearm should have been suppressed because the warrantless search of the defendant's vehicle was unlawful, and (4) that various of the judge's rulings during trial resulted in prejudicial error. For the reasons discussed below, we affirm.

Background.² At 2:30 A.M. on May 15, 2016, the Walpole police department (department) responded to a dispatch about a motor vehicle accident on North Street. When they arrived, they found that a box truck, similar to a U-Haul truck, had struck a telephone pole, breaking the pole in two places. The truck was blocking the road, there were live electrical wires hanging in the area, and the transformer on the telephone pole was leaking fluid. The defendant stated that he had been driving, and had crashed trying to avoid an animal in the road. The fire department was called, and the defendant was transported to the hospital because he was injured. A records search revealed that the defendant was not the owner of the truck.

The street remained closed for approximately two hours while the accident scene was being cleared. Because the truck was blocking the road, the officers decided that the vehicle had to be towed, and they conducted a search of the truck in advance of towing it. They did not attempt to contact the owner before doing so. When Walpole Police Officer Perciaccante opened the rear door of the truck, the nearest object was a black duffel bag containing several compartments. Officer Perciaccante testified that he searched the bag for inventory purposes. He opened the bag and found a full beer can, still cold, together with two empty liquor bottles. With the alcohol, he also found several prescription bottles of medication with the defendant's name on them. In another compartment of the duffel bag, the officer found the black .22 caliber handgun that is the subject of this case, with a loaded magazine. A records check showed that the defendant was not licensed to carry a firearm. The defendant was later arrested and charged, in particular, with carrying a firearm without a license in violation of G. L. c. 269, § 10 (a ).³

a. The testing of the firearm. Prior to trial, the defendant filed a "motion to preserve evidence," which asked a judge to order that a representative of the defendant be present at any test of the seized firearm, or alternatively, that the Commonwealth provide a complete video recording of the test. The judge allowed the motion. Defense counsel thereafter specifically brought the order to the attention of the relevant prosecutors. Nevertheless, an assistant district attorney (ADA) subsequently notified defense counsel that the firearm had been tested on September 27, 2016, by Officer John Wilmot, the armorer of the Walpole police, without notice to the defense. The ADA also provided Officer Wilmot's report, which described the tests and concluded that the gun was operable.

On August 10, 2017, defense counsel moved to exclude any evidence regarding the firearm. He argued that the Commonwealth had recklessly violated the prior order, and that in doing so it had engaged in "destructive testing" of what could well have been exculpatory evidence. The Commonwealth conceded that it had violated the order, but argued that Officer Wilmot's tests were done appropriately, that there was no showing that the gun had been altered before or as a result of the testing, and that the defense expert had later been given appropriate access to test fire the gun. The Commonwealth also argued that the defendant had not shown bad faith or recklessness.

A different motion judge held a lengthy nonevidentiary hearing on August 3, 2018, and thereafter denied the motion to exclude. He concluded that the defendant had not made "an evidence based showing of a reasonable possibility that the firearm in question was altered in some manner that destroyed exculpatory evidence." He also found that the Commonwealth had not "acted in bad faith or with recklessness." He did, however, order some relief: he stated that "the Court will allow the defendant to (1) cross examine Officer Wilmot on the steps he took during the first ballistics test and (2) to request a jury instruction on the Commonwealth's failure to conduct the first ballistics test with the defense expert present."

b. The inventory search. Defense counsel also filed a pretrial motion to suppress the various items the police officers found in the box truck -- including the gun -- on the grounds that they were the fruits of an unlawful search. After an evidentiary hearing, another judge concluded that the officers had conducted a justified inventory search, insomuch as the driver had been taken to the hospital, and the truck was blocking the road and needed to be towed. The judge also concluded that the search had been initiated in accordance with the department's inventory policy. The judge did note that the police had not made a written inventory of all the significant items that were found, and that the recordkeeping "could have been better"; he concluded, however, that the recordkeeping failures did not require suppression.

c. Trial. After the defendant's efforts to exclude the firearm were unsuccessful the case proceeded to trial. The two responding officers testified about the crash scene, and the items found in the duffel bag. Officer Wilmot testified that he had tested the gun, and that it was operable. The defense contended that the Commonwealth had not proved constructive possession of the gun, emphasizing that the defendant did not own the truck, and that the Commonwealth's investigation and evidence was inadequate (for example, that there were no photographs of the truck, its interior, or the duffel bag where the gun was found). The jury convicted the defendant of carrying a firearm without a license.

Discussion. 1. The discovery order violation. The defendant first argues that the judge erred by denying the defendant's motion to exclude the gun, where Officer Wilmot's tests had taken place in violation of the prior order. The defendant's position is not without force. The Commonwealth concedes that it violated the order, and that the order was specifically directed at preserving the defendant's right to view the firearm before it was, potentially, altered.

On the other hand, the defendant has not submitted evidence that supports a conclusion that the handgun was, in fact, materially altered by Officer Wilmot or anyone else. Officer Wilmot submitted a written report averring that he performed an inspection, and that he found the handgun "in working order." The defendant did not request an evidentiary hearing on this issue, and did not seek to examine Officer Wilmot during the hearing regarding the defendant's motion to exclude the gun. Indeed, during the nonevidentiary hearing, defense counsel did not challenge Officer Wilmot's representations as to what he did before testing the gun; defense counsel noted that the defense expert "believes him [Officer Wilmot]."

The defendant contends, nonetheless, that the gun should have been suppressed because the Commonwealth engaged in "destructive testing" the moment the gun was test fired, thereby destroying exculpatory evidence. Under the circumstances, we are not persuaded. The applicable law is set forth in Commonwealth v. Sanford, 460 Mass. 441, 445-451 (2011), a case nearly on all fours with this one, as it addressed the appropriate remedy where the Commonwealth had test fired a firearm in violation of a court order. There, the Supreme Judicial Court held that to succeed in excluding the gun, or the testing evidence, the defendant needed to show either (1) a reasonable possibility that the destroyed evidence was exculpatory, or (2) bad faith or reckless conduct by the Commonwealth. Id. at 447.

Here, as in Sanford, 468 Mass. at 449, the judge found that the defendant had failed to show a reasonable possibility that the test firing destroyed exculpatory evidence. We cannot say that conclusion was erroneous. The evidence before the judge included Officer Wilmot's report, which stated that he examined the gun and found it "in working order." The defendant's expert submission did not contest that fact, nor did the defendant seek to impeach Officer Wilmot by cross-examining him prior to trial.

On appeal, the defendant points to statements in Officer Wilmot's report which indicated that the gun was "dirty from neglect," and missing a "follower, which is a part in the magazine that separates the ammunition from the magazine spring." The defendant fails to plausibly explain, however, how either of these facts materially undermines Officer Wilmot's statements that he found the handgun in working order or that he fired the handgun "without issue." There is no suggestion that the lack of a follower, which is part of the magazine rather than part of the gun, would render the gun inoperable. The defendant's arguments are mere speculation, divorced from actual evidence.

Nor did the judge commit error in finding that there was no bad faith or recklessness. The judge's statements in this regard were findings of fact, made after a hearing. The defendant seems to suggest that the finding of no recklessness was clear error, but we...