Heard: December 6, 2018.
Complaints received and sworn to in the Lawrence Division of
the District Court Department on March 17, 2014, and December
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
Present: Green, C.J., Vuono, Meade, Sullivan, & Shin, JJ.
a jury trial in District Court, the defendant was convicted
of unlawful possession of a firearm and unlawful possession
of a loaded firearm. 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.
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.
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
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
Motion to suppress.
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. Based on Schumaker's
testimony, 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
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
"[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
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.
Sufficiency of the evidence.
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) .
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. 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