Opinion
11-P-1310
04-06-2012
COMMONWEALTH v. NJISANE CHAMBERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bifurcated bench trial, the defendant was convicted of unlawful possession of ammunition, G. L. c. 269, § 10(h)(1), and of being a career criminal, G. L. c. 269, § 10G(a). Boston police officers executed an arrest warrant issued in Worcester County, and located the defendant at a rooming house in the Dorchester section of Boston, where he was staying with a friend. A bag containing fifty-five rounds of ammunition was found hidden in a sheet hanging from a hamper a few feet from where the defendant was hiding in the single-room apartment. After originally denying that the ammunition belonged to him, the defendant admitted otherwise after his friend was also taken into custody. On appeal the defendant argues that his motion to suppress the ammunition and his statement should have been allowed because the ammunition was not discovered as part of a lawful search incident to arrest and because the officers did not have a reasonable basis to believe he was in the apartment. He also argues there was insufficient evidence to convict him under the career criminal statute. We affirm.
1. Warrantless search. Police may conduct a warrantless search incident to arrest of 'the area 'within [the defendant's] immediate control," which is 'the area within which he might gain possession of a weapon or destructible evidence.' Commonwealth v. Elizondo, 428 Mass. 322, 323-324 (1998), quoting from Chimel v. California, 395 U.S. 752, 763 (1969). The defendant argues that the motion judge erred in concluding that the police discovered the ammunition during a lawful search incident to arrest. 'In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law.' Commonwealth v. Stephens, 451 Mass. 370, 381 (2008). We conclude that the sheet concealing the ammunition and the hamper were within the defendant's 'grab area,' and thus the ammunition was lawfully discovered and admitted at trial.
The permissible scope of the search depends on 'the facts and circumstances of the arrest.' Elizondo, 428 Mass. at 324. The arresting officers knew the defendant had a history of violent crimes and firearm violations and that he was wanted on charges of armed assault with intent to murder. They were confronting him in a small room with tight quarters, see Commonwealth v. Netto, 438 Mass. 686, 695 (2003), where he had been hiding to avoid arrest. The ammunition was found in a sheet hanging outside a hamper only four to six feet from the bed where the defendant was being handcuffed. See Elizondo, 428 Mass. at 324-325 (search of bathroom was lawful incident to arrest of defendant four or five feet from bathroom door). See also United States v. Nascimento, 491 F.3d 25, 49-51 (1st Cir. 2007) (search of cabinet eight to ten feet from defendant was valid incident to arrest). Although the judge stated he could not determine whether the defendant was unrestrained at the moment the officer lifted the sheet, such a finding was not necessary to uphold the search. See Elizondo, 428 Mass. at 324 & n.3; Netto, 438 Mass. at 694-696. It is irrelevant whether the officer subjectively expected to find a weapon in the sheet or was actually concerned that the defendant could reach the hamper; we review the matter from an objective standard. Commonwealth v. Blevines, 438 Mass. 604, 608 (2003).
2. Authority to enter the apartment. In order to enter a home to execute an arrest warrant, the police must have a reasonable belief that the person to be arrested is in the home. See Commonwealth v. Silva, 440 Mass. 772, 776-778 (2004); Commonwealth v. Allen, 28 Mass. App. Ct. 589, 592-594 (1990). The defendant argues that the police did not have a reasonable belief that he was in his friend's apartment when they entered. The police had received a tip from United States marshals that the defendant might be located at 132 Callender Street. In the rooming house at that address, a resident said he might recognize the defendant, and, if the defendant was there, he would be in the back left apartment on the third floor. See Silva, 440 Mass. at 780 (building manager told officers that subject of arrest warrant was resident of apartment). Once the police reached that apartment, the defendant's friend, who answered the door, spontaneously volunteered to the police, '[H]e's hiding.' Nothing more was required to reasonably believe the defendant was in the apartment.
We assume, arguendo, that the defendant has not waived this argument.
3. Sufficiency of the evidence. In order to convict the defendant as a career offender, the Commonwealth was required to prove that the defendant was previously convicted of a violent crime and that he was represented by counsel or waived his right to counsel in connection with that conviction. Commonwealth v. Savageau, 42 Mass. App. Ct. 518, 521 (1997). The defendant argues there was insufficient evidence that he was represented by counsel when he pleaded guilty to previous violent crimes. We disagree. Our cases apply a ''presumption of regularity' . . . whereby judges presume that defendants who have been convicted of a felony charge will have had counsel or had validly waived counsel.' Commonwealth v. Saunders, 435 Mass. 691, 695 (2002). When evidence of a conviction is offered in a career offender charge, the Commonwealth need not offer further proof that the defendant was represented by counsel 'unless the defendant first makes a showing that the conviction was obtained without representation by or waiver of counsel.' Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905 (2010). The Commonwealth introduced a copy of the criminal docket to prove the defendant's prior convictions, and the defendant did not present any information to rebut the presumption.
The defendant pleaded guilty in 2006 to three counts of assault means of a dangerous weapon.
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Even absent the presumption, we would reach the same conclusion. The record showed that counsel had filed an appearance for all purposes in the earlier cases. See Mass.R.Crim.P. 7(b)(2), as appearing in 442 Mass. 1506 (2004) ('An appearance . . . shall constitute a representation that the attorney shall represent the defendant for trial or plea'). There is nothing in the record to suggest that counsel withdrew before the defendant's plea.
Judgments affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),