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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Holmes, 34 Mass.App.Ct.
916 (1993)
Appeals Court of Massachusetts,
No. 91‑P‑1496.
Argued
Decided
Further Appellate Review Denied
John T. Burns,
David B. Mark, Asst. Dist. Atty., for Com.
Before PERRETTA, JACOBS
and GREENBERG, JJ.
RESCRIPT.
A Superior
Court jury found the defendant, Holmes, guilty of the crimes of unlawfully
carrying a firearm (a PMK .380 caliber handgun),
possession of ammunition without a license (8 rounds chambered within the
pistol), and assault and battery on a police officer; all offenses alleged to have been committed
immediately after an automobile stop in Boston.
The appeal is from the conviction of unlawfully carrying a firearm.
[1] 1. At
a pretrial hearing the defendant sought suppression of the loaded pistol found
on his person on the grounds that his rights under the Fourth Amendment to the
United States Constitution and art. 14 of the Declaration of Rights of the
Massachusetts Constitution were violated.
We take the facts relevant to that issue from the judge's findings. Uniformed police officers Robert McClain and Fermin Cardona, traveling in a marked patrol wagon at about
6:15 P.M. stopped a 1989 Volkswagen sedan operated by Kimberly Lang. Their purpose was to return a New Hampshire
registration certificate which they had earlier neglected to give back to her
after a routine traffic stop.
Approaching the Volkswagen on foot, the two officers noticed the
defendant seated in the front passenger seat.
As Cardona‑‑stationed on the driver's side‑‑was
handing the certificate to Lang, McClain, who stood next to the passenger door,
kept watch over the defendant.
The
defendant leaned over toward the driver's side to converse with Cardona who
engaged him in a brief inquiry about a previous citation he had issued to him
for operating a motor scooter without a license. From his vantage point, McClain then noticed
a bulge in the defendant's right hand pocket which seemed shaped like a
pistol. McClain asked the defendant to
step out of the vehicle, and then held onto the car door so as to be positioned
to pin the defendant against the car itself.
Suddenly the defendant slammed open the door, knocking McClain to the
pavement, and fled down the street.
Officer Cardona gave chase and in a few minutes the defendant was
apprehended with the assistance of another officer responding to the
scene. Cardona and the other officer
handcuffed the defendant‑‑still unaware at this point that the
defendant had a concealed weapon in his pocket.
A pat‑down frisk conducted moments later revealed the revolver.
The
judge's findings eliminate motor vehicle violations and car theft as a basis
for the stop. Cf. Commonwealth v. Cavanaugh, 366 Mass. 277, 278, 317 N.E.2d 480
(1974) (traffic offenses); Commonwealth v. Ling, 370 Mass. 238, 240‑241,
346 N.E.2d 703 (1976) (car theft).
Furthermore, he found that the second stop of Lang's vehicle was
unnecessary and a pretext "since they could have mailed the certificate
back to [her] and avoided the intrusion entirely." Regardless of whether the officer's decision
to return Lang's license upon the second sighting of the vehicle was a pretext,
and may not have justified a pat‑down of the defendant under Terry v. Ohio, 392 U.S. 1, 21‑22,
88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), we agree
with the judge's conclusion that the defendant's sudden flight and assault and
battery on Officer McClain gave rise to an independent justification[34 Mass.App.Ct.
918]
for their pursuit. It created a
completely new situation so attenuated from the initial encounter as to wholly
dissipate whatever initial taint one might read into the officer's curiosity
about the defendant. Commonwealth v. Saia,
372 Mass. 53, 360 N.E.2d 329 (1977); Commonwealth v. King, 389 Mass. 233, 449
N.E.2d 1217 (1983); Commonwealth v. Frodyma,
393 Mass. 438, 471 N.E.2d 1298 (1984).
Observation
of the bulge in the defendant's pocket was the only possible source of
reasonable suspicion of the defendant, and this, of course, occurred after the
stop of the vehicle. The officers had no
other information about the defendant's background which justified the
intrusion. Compare Commonwealth v. Ballou, 350 Mass. 751,
754‑55, 217 N.E.2d 187 (1966) (no bulge but the defendant had reputation
known to officers for carrying guns).
While the circumstances at that point did not warrant an initial pat‑down
of the defendant, his subsequent flight may be considered as a factor in
evaluating the officer's articulable suspicion
because "the defendant broke away from the police before they pursued
him." Commonwealth v. Marrero, 33 Mass.App.Ct. 440, 444, 600 N.E.2d 1016 (1992), quoting from Commonwealth v. Sanchez, 403 Mass. 640,
646, 531 N.E.2d 1256 (1988). Even if
McClain's observation of the defendant could not support a reasonable suspicion
that the defendant concealed a weapon
before the second stop of the Lang vehicle, the defendant's flight coupled
with McClain's observation of the odd bulge in his pocket, provided an
independent basis for the postarrest pat‑down
search of the defendant. Commonwealth v. Frodyma,
393 Mass. at 441, 471 N.E.2d 1298.
[2] 2. In
the midst of Lang's direct testimony at the suppression hearing offered in
support of the defendant's very different version of the events described by
the police, the prosecutor suggested to the judge that Lang be advised of her
right under the Fifth Amendment to the United States Constitution not to
incriminate herself. The judge recessed
the hearing and appointed counsel to advise her of her rights. Shortly thereafter she declined to testify
any further and her previous testimony was struck‑‑the judge
preserving the defendant's right to appeal this ruling.
What the
defendant claims on appeal is that Lang's testimony was so crucial to a
favorable outcome on the suppression motion that his defense to the
"carrying" charge was destroyed.
Lang testified before the interruption that the officers mistakenly
insisted that the defendant was someone else (for whom they had outstanding
arrest warrants) and asked him to step out for identification. The defendant complied and an initial frisk
occurred which did not reveal any concealed weapon. According to Lang, when the officers were
about to frisk him again, "he ran."
Even if her testimony were fully credited, it is unlikely that the
judge's ruling on the suppression motion would have been altered. See
Commonwealth v. Sanchez, 403 Mass. at 646, 531 N.E.2d 1256 (defendant's
flight, after consenting to a police search, provided the officers with enough
suspicion to pursue him).
It is
clear from the record that Lang testified without being aware of her Fifth
Amendment rights and, once apprised by counsel of the risks inherent in
proceeding further, her choice not to continue was unequivocal. See [34
Mass.App.Ct. 919] Taylor v. Commonwealth, 369 Mass. 183,
338 N.E.2d 823 (1975); Commonwealth v. Funches,
379 Mass. 283, 397 N.E.2d 1097 (1979); Commonwealth v. Weed, 17 Mass.App.Ct. 463, 459 N.E.2d 144 (1984) (a witness must
testify freely and voluntarily and may not be ignorant, misinformed or confused
about her rights).
[3]
Lastly, Lang's willingness at the outset to testify for the defendant cannot be
construed as a waiver of her right to invoke Fifth Amendment protection
because, unlike the situation described in the principal case which the
defendant marshals for support, Matter of
DeSaulnier (No. 2), 360 Mass. 761, 766, 276
N.E.2d 278 (1971), Lang, at the outset, was not represented by counsel and was
ignorant of her rights prior to the judge's warning. Under these circumstances, it is evident that her
testimony‑‑which might have led to her being charged with a crime‑‑was
not so "freely or voluntarily" given as to constitute a waiver.
Taylor v. Commonwealth, 369 Mass. at 190, 338 N.E.2d 823.
3. Defense
counsel, on the day the case was called for trial, requested a continuance on
the ground that he had just discovered that Lang (and other occupants of the
vehicle at the time of the second stop by the police) had gone to Florida and
were not expected to return for nine days.
After determining that the case had been continued at least once before
at the defendant's request and that the Commonwealth was ready for trial, the
judge declined the request.
[4][5] It
is well settled that the question whether to grant a request for a continuance
rests within the sound discretion of the trial judge. Commonwealth v. Cavanaugh,
371 Mass. 46, 50‑51, 353 N.E.2d 732 (1976); Commonwealth v. Mamay, 407 Mass. 412, 419, 553 N.E.2d 945 (1990). Here there was not patent abuse of that
discretion. See Commonwealth v. Gilchrest, 364 Mass. 272, 276, 303 N.E.2d 331
(1973). Defense counsel mused before the
judge, that with the passage of time Lang would likely testify as a defense
witness. Yet defense counsel provided no
affidavit of Lang or other supporting information to the judge to confirm that
she had changed her mind. There was no
abuse of discretion. See Commonwealth v. Small, 10 Mass.App.Ct. 606, 609, 411 N.E.2d 179 (1980) (no abuse of
discretion was shown by the judge's denial of the defendant's motion for a
continuance made the day before trial was to commence, in order to prepare his
case as a result of learning earlier of a witness's retracted testimony); Commonwealth
v. Perry, 6 Mass.App.Ct. 531, 540‑541, 378
N.E.2d 1384 (1978) (speculation concerning possible testimony of two potential
witnesses unpersuasive).
Judgment affirmed.