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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Williams, 422
Supreme Judicial Court of Massachusetts,
Argued
Decided
Earl Howard,
Kelly Ann Downes, Assistant District Attorney, for
Commonwealth.
Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and
GREANEY, JJ.
ABRAMS, Justice.
The defendant, Leroy Williams, appeals from his
convictions of murder in the first degree and unlawful carrying of a
firearm. (FN1) The defendant also appeals from the denial,
after a hearing, of his motion to suppress all evidence obtained as the result
of his arrest and the denial of his motion for required findings of not
guilty. We conclude that the conviction
for murder in the first degree should be affirmed. We decline to exercise our extraordinary
power under G.L. c. 278, § 33E (1994 ed.), to enter a verdict of a lesser
degree of guilt or order a new trial. We
also affirm the conviction for unlawful carrying of a firearm.
We set forth the facts in the light most favorable to the
Commonwealth. Commonwealth v.
Nichypor, 419
At the time of the shooting, Boston police Officers Paul
C. [422 Mass. 113] McLaughlin and Daniel Fagan were on patrol in
a two-man cruiser travelling inbound on Washington Street toward Codman Square
in the Dorchester section of Boston at a slow rate of speed. On reaching the intersection of Washington
and Aspinwall Streets, Officer McLaughlin observed two black males running at
"sprint pace" down
As the officers began to follow the men, an unidentified
white, middle-aged man approached the cruiser and handed Officer Fagan a
beeper, stating, "I don't know what happened but one of them dropped
this." (FN5) The officers continued to follow the men but
did not activate the cruiser's lights or siren, nor call to the men to stop. Neither man turned to look at the
cruiser. On
While handcuffing the defendant, the officers received a
radio broadcast reporting a confirmed shooting at
On route to 544 Washington Street, the defendant was read
the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966), and shown to the civilian witnesses. See Commonwealth v. Bumpus, 362 Mass.
672, 675, 290 N.E.2d 167 (1972), judgment vacated and remanded on other
grounds, 411 U.S. 945, 93 S.Ct. 1941,
36 L.Ed.2d 407 (1973) To view preceding link please click here , aff'd on rehearing, 365 Mass. 66, 309
N.E.2d 491 (1974), reviewed on petition for habeas corpus sub nom. Bumpus v. Gunter, 452 F.Supp. 1060
(D.Mass.1978), denial of writ aff'd, 635 F.2d 907 (1st Cir.1980), cert. denied,
450 U.S. 1003, 101 S.Ct. 1714, 68 L.Ed.2d 207 (1981) (defendant may be shown to
witnesses for identification prior to arrest).
Both Lindo and Boswell identified the defendant as one of the two men
they had seen running from the apartment following the gunshots. The defendant was then searched for
weapons. The police recovered two
plastic bags on the defendant's person, one containing a substance later
identified as cocaine and the other a substance later identified as
marihuana. (FN7) The defendant was then taken to the police
station and booked. During the search
incident to booking, the police discovered, on the defendant's person, a
BayBank Express card in the name of Norris A. Foster. The defendant admitted that the card [422
Mass. 115] belonged to the victim, Leroy Foster. (FN8)
The defendant's cap, pants, and sneakers were taken for blood analysis
at the request of the assistant district attorney. The analysis revealed the presence of human
blood but the blood type could not be determined.
Later investigation at the scene of the shooting revealed
all windows, except those facing the front of the apartment, were shut and
locked. There was no practical means of
leaving the building other than the front door and no persons were found in the
hallway or corridors of either building.
An autopsy of the victim revealed that he had sustained
three gunshot wounds, two to the chest and one to the upper right arm. The first chest wound appeared to be a
distance wound. From observation of
stippling around the second wound, the medical examiner determined that this
wound was inflicted at close range. The medical
examiner determined that either chest wound was fatal.
I. Motion to suppress. The defendant sought to suppress all
physical evidence and his statements. He
argued that the stop and subsequent arrest were unlawful and in violation of
his rights under art. 14 of the
[1][2] The Commonwealth bears the burden of demonstrating
that the police officers acted lawfully in pursuing and seizing [422
Mass. 116] the defendant.
Commonwealth v. Shields, 402
[3][4] We first consider whether the confrontation in the
back yards at Aspinwall Street was a permissible investigatory stop. See Commonwealth v. Willis, 415 Mass.
814, 817, 616 N.E.2d 62 (1993) (to conduct threshold inquiry, police officer
must have reasonable suspicion, based on specific, articulable facts and
reasonable inferences that the defendant has committed, is committing, or was
about to commit crime). See also
Terry v. Ohio, supra. Review of the
officers' conduct in effectuating a threshold inquiry requires a two-part
analysis: first, whether it was
permissible to initiate investigation and second, whether the scope of the
seizure was justified by the situation.
See Terry v. Ohio, supra at 19-20, 88 S.Ct. at 1878-1879.
[5] The defendant focuses his argument on the first prong
of the two-part analysis. He argues that
the police had no reasonable and articulable suspicion justifying pursuit,
which the defendant contends initiated when the police began to follow him in
the cruiser. We do not agree. When the police first spotted the defendant
running and decided to follow in their cruiser, they were merely observing
rather than pursuing the defendant. No
degree of suspicion, reasonable or otherwise, was constitutionally required for
the police to commence surveillance.
Michigan v. Chesternut, 486
[6] Pursuit for constitutional purposes began when the
officers left the police cruiser and began to chase the suspects on foot. At this time, the police were attempting to
stop the defendant to effectuate a threshold inquiry. We conclude that the police then possessed
the requisite reasonable suspicion necessary to justify a threshold
inquiry. The defendant was running down
a busy street at sprint pace in broad daylight.
The police could properly consider that the defendant's flight predated
the officers' pursuit, rather than being in response to it. See
[7][8][9][10] We next turn to the second prong, whether
the scope of the seizure was justified by the situation. We conclude that it was appropriate for
Officer McLaughlin to approach the defendant with his gun drawn. An officer is entitled to take reasonable
steps to ensure his safety. Such steps
do not automatically turn a stop into an arrest.
The defendant was immediately transported to the crime
scene for identification and thus was not unduly detained. See Commonwealth v. Salerno, 356 Mass.
642, 646-647, 255 N.E.2d 318 (1970), quoting Ker v. California, 374 U.S.
23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963) ("An expeditious
collateral inquiry which might result in the suspects' arrest or prompt release
is not unreasonable when done to meet 'the practical demands of effective
criminal investigation and law enforcement' "); Commonwealth v. Crowley, 29 Mass.App.Ct.
1, 5, 556 N.E.2d 1043 (1990) (transportation back to crime scene did not unduly
prolong detention since only twenty minutes was involved). The defendant posed a substantial flight risk
given that he tried to flee after the officer ordered him to stop. He also posed a significant safety risk. The officers saw that the [422 Mass.
119] defendant was covered in blood and could ascertain that he lied
about having been shot. It was
reasonable for the officers to be concerned that the defendant might be armed
and might pose a risk to their safety, as well as the public's. Officers McLaughlin and Fagan were justified
in restraining the defendant's liberty of movement while they conducted a
threshold inquiry. Such restraint, which
was limited in duration and necessary to complete the inquiry, does not turn a valid
investigatory stop into an unlawful arrest.
[11][12] At the point when the officers had successfully
restrained the defendant, they received the radio transmission confirming that
a shooting had taken place 200 to 400 yards from where they confronted the defendant. This was sufficient to supply probable cause
to arrest. (FN11) At or near the scene of the shooting, the officers had
seen bystanders staring at and pointing to the defendant and his
companion. One bystander informed the
officers that the suspects dropped a "beeper," an accoutrement of the
drug trade. The officers witnessed the
suspects run and dart evasively through back yards and the defendant discard
his shirt. The defendant was covered in
blood and when cornered by the officers stated "I didn't mean it. I didn't mean it. I don't want to go back to prison." He then lied about being shot and attempted
to flee. After receiving the radio
transmission confirming a shooting nearby, it was proper for the officers to
arrest the defendant on suspicion of involvement in that shooting. (FN12)
[13] Because the arrest was proper, the police were
authorized [422 Mass. 120] to search the defendant's person for
weapons, contraband, and evidence. See
G.L. c. 276, § 1 (1994 ed.);
Commonwealth v. Petrillo, 399
II. Motion for required findings of not guilty. The defendant moved for required findings of
not guilty as to the murder and unlawful carrying of a firearm charges at the
end of the Commonwealth's case and at the end of all evidence. Both motions were denied. The defendant asserts that the denials were
in error.
A motion for a required finding of not guilty will be
allowed only where the trial judge finds that "the evidence is
insufficient as a matter of law to sustain a conviction on the
charge." Mass.R.Crim.P. 25(a), 378
[14][15] A. The unlawful carrying of a firearm. To prove unlawful carrying of a firearm, the
Commonwealth must prove that the defendant knowingly possessed a loaded or
unloaded firearm without a license. G.L.
c. 269, § 10(a ) (1994 ed.). The
defendant argues that there was insufficient evidence to convict him of the
unlawful carrying of a firearm because there was "no evidence that the
firearm claimed to be in the possession of the defendant ... was capable of
being fired or was fired at all."
The defendant's argument is without merit. The jury could properly have considered
eyewitness testimony that the defendant had a firearm in his possession, even
in the absence [422 Mass. 121] of the recovery of such a firearm. Commonwealth v. Lopez, 10 Mass.App.Ct.
351, 354, 407 N.E.2d 393 (1980). It is
sufficient that a gun was fired and the defendant was seen fleeing the scene
within seconds of the gunshots. A
conviction may be properly based entirely on circumstantial evidence so long as
that evidence establishes the defendant's guilt beyond a reasonable doubt. Commonwealth v. Martino, 412
[16][17][18][19] B. Murder. The Commonwealth presented a joint venture
theory of murder. The three elements required to prove a joint
venture beyond a reasonable doubt are that each defendant was (1) present at
the scene of the crime, (2) with knowledge that another intends to commit the
crime or with intent to commit a crime, and (3) by agreement is willing and
available to help the other if necessary.
[20] To prove murder beyond a reasonable doubt, the
Commonwealth must show that the defendant unlawfully killed a human being with
malice aforethought. G.L. c. 265, § 1
(1994 ed.).
[21][22] To prove that the murder was murder in the first
degree, the Commonwealth proceeded on the theory of deliberate
premeditation. To satisfy its burden
that the murder was the product of deliberately premeditated malice
aforethought, the Commonwealth must show that the defendant's decision to kill
was the product of "cool reflection." Commonwealth v. Davis, 403
[23] Viewed in the light most favorable to the
Commonwealth, the evidence allows a rational jury to have inferred that the
defendant acted with deliberate premeditation in bringing a loaded revolver to the
victim's apartment and firing three [422 Mass. 123] shots into
the victim from varying distances. The
use of a firearm in the killing is sufficient to support a verdict of murder in
the first degree based on deliberately premeditated malice aforethought. Commonwealth v. Bourgeois, 404
[24] III.
Relief under G.L. c. 278, § 33E.
The defendant makes two arguments not raised below which we consider pursuant
to G.L. c. 278, § 33E. First, the
defendant raises the issue of the reliability of the unidentified man who
supplied Officer Fagan with the beeper.
(FN13) There were no findings of
fact as to the reliability of the bystander or the extent the police relied on
the evidence he volunteered. We consider
the issue under G.L. c. 278, § 33E, only to determine whether there was serious
error that would create a "substantial likelihood of a miscarriage of
justice."
[25] Secondly, the defendant argues that, because he
smoked marihuana while with the victim, the question whether he was impaired
and unable to form shared intent should have been presented to the jury.
[422 Mass. 125] We have considered the
entire case on the law and the evidence, see G.L. c. 278, § 33E, and we
conclude that the interests of justice do not require entry of a lesser degree
of guilt as to the murder conviction or a new trial.
Judgments affirmed.
(FN1.) The defendant also was
convicted of unlawful possession of a Class D controlled substance (marihuana)
and trafficking in cocaine. He limits
his arguments on appeal to the convictions of murder in the first degree and
unlawful carrying of a firearm. The
motion for required findings of not guilty similarly referenced only those
charges. As the defendant makes no
argument as to the drug convictions in his appellate brief, we review only the
convictions for first degree murder and unlawful carrying of a firearm. See Mass.R.A.P. 16(a)(4), as amended, 367
Mass. 921 (1975) ( "The appellate court need not pass upon questions or
issues not argued in the brief").
(FN2.) There is some dispute as to whether
Lindo testified that the second man also carried a gun. The transcript represents the testimony as
follows: "First I saw a brown guy
with a gun; and, then, after a split
second, I saw another guy, a dark gun."
The Commonwealth asserts this was a typographical error by the court
reporter who meant to type "a dark guy." This is the only evidence that the second
man carried a gun.
(FN3.) The police later conducted an extensive
search of the empty lot identified by the witnesses but did not recover the
gun.
(FN4.) This action also was observed by Mia
Tuwen who was at work in the Codman Square Cleaners at 563 Washington
Street. She saw the man take off his
shirt and discard it on the ground near a mailbox in front of her store. She later identified the shirt for police. The shirt was tested for the presence of
human blood and found to contain type A human blood, the victim's blood type.
(FN5.) Al Camarata, an employee of Metro Media
Paging, stated that the beeper was leased to Leroy A. Foster, the victim.
(FN6.) The latter part of the defendant's
statement, "I don't want to go back to prison," was excluded at trial
but not at the hearing on the motion to suppress.
(FN7.) A police expert, Sergeant Detective Gil
Griffiths, testified that, in his opinion, given the amount and purity of the
cocaine found on the defendant's person, it was intended for distribution
purposes. He estimated the street value
of the cocaine as approximately $4,500 and the value of the marihuana as approximately
$200 to $225.
(FN8.) The victim's brother, Norris Foster,
confirmed at trial that he previously had given the bank card to the victim.
(FN9.) Article 14 of the Massachusetts
Declaration of Rights provides greater substantive protection to a criminal
defendant than does the Fourth Amendment to the United States
Constitution. We view the contested stop
and subsequent arrest in light of the more stringent standards of art. 14 with
the understanding that, if these standards are met, so too are those of the
Fourth Amendment.
In his
brief, the defendant does not state what standard we should adopt or in what
regard our cases on stop and frisk differ from Federal cases but cites both
Federal and State cases in support of his claim. We, therefore, analyze both art. 14 and
Fourth Amendment cases.
(FN10.) There is no basis for the
defendant's contention that he was seized prior to the confrontation with the
officer as the defendant was unaware of the officers' pursuit. There was neither physical force nor an
assertion of authority that effectuated a stop.
See California v. Hodari D., 499 U.S. 621, 627-629, 111 S.Ct.
1547, 1551-1552, 113 L.Ed.2d 690 (1991) (seizure does not occur during a chase
that does not produce the suspect's stop).
See also Commonwealth v. Cook, 419 Mass. 192, 199-200, 644 N.E.2d
203 (1994) (no seizure unless reasonable person would have believed he was not
free to leave). Under either the State
of Federal case law, the defendant was not seized prior to the confrontation.
_ (FN11.) Probable cause to
arrest exists where the facts and circumstances in the arresting officer's
knowledge and of which he or she has reasonably trustworthy information are
sufficient to warrant a person of reasonable caution in believing that an
offense has been or is being committed.
(FN12.) Because we conclude that the police
had probable cause to arrest at the time of the radio transmission, we need not
discuss the question whether, as the Commonwealth contends, the arrest was not
effectuated until after the defendant was transported back to the crime scene
and identified by the civilian witnesses.
The Commonwealth argues that, although the police had probable cause for
arrest at the time of the radio transmission, they did not arrest the defendant
until after he had been transported back to the crime scene, read the
Miranda warnings, and identified by the civilian witnesses.
(FN13.) While the beeper is more relevant to
the conviction for trafficking in cocaine, see note 1, supra, we
consider the defendant's arguments under G.L. c. 278, § 33E, as they relate to
the conviction for murder in the first degree.
The beeper is relevant as it was a factor in the motion judge's
consideration whether the police had reasonable suspicion justifying the
pursuit and threshold inquiry that led to the defendant's arrest for the
murder.
(FN14.) We note that the beeper was only a
small portion of the accumulating evidence that underlaid the reasonable
suspicion justifying a threshold inquiry by the police.