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Commonwealth v. Silvelo

Appeals Court of Massachusetts, Essex

September 19, 2019

COMMONWEALTH
v.
DERON N. SILVELO.[1]

          Heard: December 6, 2018.

          Complaints received and sworn to in the Lawrence Division of the District Court Department on March 17, 2014, and December 2, 2015.

         A pretrial motion to suppress evidence was heard by Michael A. Uhlarik, J.; a motion for reconsideration was considered by him; and the case was tried before Holly V. Broadbent, J.

          Michelle A. Dame for the defendant.

          Catherine P. Sullivan, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Vuono, Meade, Sullivan, & Shin, JJ.

          VUONO, J.

         Following a jury trial in District Court, the defendant was convicted of unlawful possession of a firearm and unlawful possession of a loaded firearm.[2] The charges stemmed from the discovery of a loaded revolver in a vehicle in which the defendant was a passenger. On appeal, he claims that (1) the motion judge erred in denying his motion to suppress the firearm, (2) the evidence was insufficient to prove that he knew the firearm was loaded, (3) certain comments made by the prosecutor in his closing argument were error that created a substantial risk of a miscarriage of justice, and (4) his conviction of possession of a loaded firearm should be reversed because the judge did not instruct the jury that the Commonwealth is required to prove beyond a reasonable doubt that the defendant knew the firearm was loaded, and the evidence was insufficient to prove that the defendant knew the firearm was loaded. We affirm.

         Background.

         The jury could have found the following facts. On March 16, 2014, at approximately 11:15 £.M•, State Police Trooper Daniel Schumaker was on patrol on Route 495 in Lawrence when he stopped a vehicle for not displaying a valid inspection sticker. The defendant was a passenger in the front seat. His mother, who owned the car, was driving. Another adult, two young children, and a teenager were seated in the back seat.

         Schumaker approached the car from the passenger side and saw that the defendant was not wearing a seat belt. Schumaker asked the defendant for identification so that he could issue a citation to him. The defendant reached into the left pocket of his cargo pants and retrieved a black object from his pants. Based on his training and experience, Schumaker believed the item was "[p]ossibly a weapon." The object fell between the seat and the center console, out of Schumaker's view. The defendant then produced a wallet and handed his identification to Schumaker. Schumaker believed that the object he saw was a weapon, but he did nothing at that point because there were children in the back seat and he wanted to avoid escalating the situation. Instead, Schumaker returned to his cruiser and conducted a records check. The check revealed that the defendant had several "active" warrants. Schumaker called for assistance and remained in his cruiser until backup arrived. About fifteen minutes later, when additional officers were on the scene, Schumaker returned to the car, ordered the defendant out, pat frisked him, and placed him under arrest. The defendant cooperated. After the defendant was handcuffed and seated in the cruiser, Schumaker returned to the car and searched the area where the defendant had been sitting. He found under the passenger seat a .38 caliber snub-nosed revolver loaded with four rounds of ammunition. The revolver and the ammunition were introduced as exhibits at trial.[3]

         The defendant did not testify. Through argument, cross-examination, and testimony provided by his mother, the defendant maintained that he had no knowledge that the gun was in the car, which his mother had purchased, preowned, seven days earlier. He vigorously challenged Schumaker's credibility, asserting that, had Schumaker seen the defendant remove a weapon from his pocket, Schumaker would not have left the defendant in the car while waiting for assistance to arrive. The defendant's mother also attempted to undermine Schumaker's version of events. She testified that another officer, not Schumaker, found the gun and had done so after searching the car three or four times. Lastly, defense counsel emphasized that the defendant's behavior was inconsistent with guilt because he did not appear nervous and acted, in Schumaker's words, like a "perfect gentleman."

         Discussion.

         1. Motion to suppress.

         The defendant filed a motion to suppress the firearm alleging that the search of the automobile was unconstitutional. Following an evidentiary hearing, at which Schumaker was the sole witness, the motion judge denied the motion in a handwritten endorsement.[4] Based on Schumaker's testimony,[5] which the judge explicitly credited, the judge found as follows: (1) Schumaker made a valid motor vehicle stop based on the vehicle's noncompliance with "inspection laws"; (2) the defendant was not wearing a seat belt and, therefore, Schumaker was entitled to ask for his identification; (3) "[w]hile getting his [identification], the [defendant] removed what appeared to be a gun from his pants pocket [and] placed it between the console [and the] seat"; (4) Schumaker lawfully arrested the defendant on active warrants; and (5) "[a]fter [the defendant] was arrested [and] placed in [the] cruiser, the [trooper] searched the area around the passenger seat [and] found [and] seized a gun." On the basis of these facts the motion judge concluded that the search of the car was justified on two grounds: first, as a valid search incident to an arrest, and second, as a protective search for the trooper's safety.

         "In reviewing a ruling on a motion to suppress, we accept the [motion] judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [the] ultimate findings and conclusions of law'" (citation omitted). Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018) . "We review independently the application of constitutional principles to the facts found" (citation omitted). Commonwealth v. Amado, 474 Mass. 147, 151 (2016).

The motion to suppress was properly denied. First, as the defendant acknowledges, the stop of the automobile was legal. See Commonwealth v. Buckley, 478 Mass. 861, 865-866 (2018) (where police observe traffic violation, they are warranted in stopping vehicle). Next, the trooper's request for identification for the purpose of issuing a citation was proper, see Commonwealth v. Elysee, 77 Mass.App.Ct. 833, 843-844 (2010), and the defendant was lawfully arrested on active warrants, see Commonwealth v. Clermy, 421 Mass. 325, 326-327 (1995). The only remaining issue is whether Schumaker acted reasonably in looking under the front passenger seat to determine whether the object he saw was a firearm. We think he did.

          "[A] Terry type of search may extend into the interior of an automobile so long as it is limited in scope to a protective end." Commonwealth v. Almeida, 373 Mass. 266, 272 (1977) . Here, while standing outside the vehicle, Schumaker saw the defendant remove an object from his pocket and then place it between the seat and the center console. The motion judge explicitly credited the trooper's testimony that the object appeared to be a gun. These circumstances warranted further investigation. The investigation that then occurred, the search of the area under the front passenger seat, was confined to what was minimally necessary to learn whether the object was, in fact, a firearm or another weapon. Schumaker was not required to "gamble with [his] personal safety." Commonwealth v. Robbins, 407 Mass. 147, 152 (1990). We conclude that Schumaker's actions were reasonable and necessary for his protection and, therefore, the search was lawful.

         Furthermore, contrary to the defendant's argument, it matters not that the defendant was handcuffed and seated in the cruiser at the time of the search. Two adults and three children were in the car. Thus, the threat to the trooper's safety and the safety of the occupants had not ceased. Robbins, 407 Mass. at 152. Indeed, to not investigate in the circumstances presented could have been dangerous.[6]

         2. Sufficiency of the evidence.

         In reviewing a claim of insufficient evidence, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "To convict the defendant of unlawful possession of a loaded firearm, the Commonwealth [is] required to prove that the defendant knowingly possessed a firearm that was loaded with ammunition and met the legal requirements of a firearm." Commonwealth v. Johnson, 461 Mass. 44, 52 (2011). In a recent decision, decided after the trial in this case, the Supreme Judicial Court held that the Commonwealth also must prove that a defendant knew the firearm he possessed was loaded. See Commonwealth v. Brown, 479 Mass. 600, 608 (2018) .

         The defendant's challenge to the sufficiency of the evidence is limited to the element of knowledge as defined in Brown. That is, he contends the Commonwealth failed to satisfy its burden of proving that he knew the firearm was loaded. This argument fails for a simple reason: the firearm in question is a revolver and, as such, the bullets in the cylinder were clearly visible. As the court explained in Brown, supra, a rational jury could infer that an individual who possessed a firearm was aware that it was loaded from circumstantial evidence including whether it is possible to discern merely by observation whether the firearm is loaded. Here, it was possible to discern whether the revolver was loaded merely by looking at it. Consequently, the Commonwealth met its burden of proof.[7] Contrast Commonwealth v. Galarza, 93 Mass.App.Ct. 740, 748 (2018) (evidence not sufficient to support conviction of unlawful possession of loaded firearm because one could not discern from looking at firearm that it was loaded). In addition, the jury could have reasonably concluded that the defendant would have checked to see if the firearm was loaded before he put it in his pocket. See Commonwealth v. Resende, 94 Mass.App.Ct. 194, 200 (2018) (evidence sufficient to prove defendant knew firearm seized from waistband of his pants was loaded because reasonable to infer "that a person would check to see if the firearm was loaded before putting it in his waistband").

         3. Clos ...


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