Opinion
19-P-581
01-04-2021
COMMONWEALTH v. KYLE POLIZZOTTI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kyle Polizzotti, appeals from his convictions of possession of a firearm under G. L. c. 269, § 10 (a), possession of ammunition under G. L. c. 269, § 10 (h), and possession of a large capacity feeding device under G. L. c. 269, § 10 (m). The defendant contends that the motion judge improperly denied his motion to suppress evidence, that his motion for a required finding of not guilty should have been allowed, and that two of the convictions were duplicative, in violation of his rights under the Fifth Amendment to the United States Constitution. We affirm.
Discussion. 1. Motion to suppress. We summarize the facts as found by the motion judge, supplemented by the uncontested facts in the record that are consistent with his findings. Commonwealth v. Jones-Pannell, 472 Mass. 429, 430 (2015). Detective David Kew of the Lowell Police Department was driving in an unmarked cruiser through the Lower Belvedere neighborhood of Lowell at approximately 11:30 P.M. He was accompanied by Detectives Photimath and Dokos. The neighborhood was known to police as the location of many arrests for firearms, drugs, and car break-ins. The detectives were not uniformed but were wearing their badges around their necks. As the detectives drove down Perry Street, they noticed two men who appeared to be circling a car and leaning over to look into it; they did not appear to have a car key. The detectives considered this conduct suspicious. Detective Dokos, sitting in the passenger seat, asked the two men if the detectives could speak with them. The men remained several feet away, but spoke to the detectives.
The detectives recognized one of the men as Luis Morales, but could not immediately identify the other man, later identified as the defendant, who wore dark clothing and a green and yellow Green Bay Packers cap. The two men told the officers that they were going to Smith Street, which Detective Kew felt was odd based on their direction of travel. Detectives Kew and Dokos both noticed the two men were "hip checking." Kew explained this term to mean "if you're possessing a firearm, using your elbow or your hand to feel where your firearm is to make sure it's not showing and that it's still on your person." Detective Dokos told the men that there were a lot of car break-ins in the area and that their behavior was suspicious.
Based on his prior experience and training with firearms, Detective Kew believed the two men were carrying firearms. Detective Kew and Detective Dokos whispered to one another to get out of the car. As Detectives Dokos and Kew opened their doors to step out, the defendant said, "Why are you searching me?" Morales and the defendant then fled in opposite directions. Detective Kew followed the defendant and saw him reach towards his waistband and pull out a firearm, which he threw in the direction of the detective. The Packers cap fell about five feet away from the firearm. Detective Kew ordered the defendant to stop but he did not. When Kew realized neither of the other detectives were behind him to secure the firearm, he returned to Perry Street to secure it. The defendant was later apprehended.
"In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error." Commonwealth v. Warren, 475 Mass. 530, 534 (2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). However, "[w]e review independently the application of constitutional principles to the facts found." Warren, supra, quoting Wilson, supra.
To determine the legality of the stop, "we must determine (1) at what point the stop occurred; and (2) whether the officer had reasonable suspicion for the stop at that time." Commonwealth v. Matta, 483 Mass. 357, 360 (2019). To determine whether a seizure has occurred, we ask "whether, in the circumstances, a reasonable person would believe that an officer would compel him or her to stay." Id. at 363. In considering this question, we evaluate "whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay." Id. at 362.
The judge ruled that the stop began when the officers opened their doors to get out of the unmarked car, and was permissibly extended when the defendant and Morales fled. Assuming without deciding that the stop began when the officers got out of the cruiser, the officers had "reasonable suspicion, based on specific and articulable facts, that the defendant had committed, was committing, or was about to commit a crime." Commonwealth v. Evelyn, 485 Mass. 691, 704 (2020), quoting Commonwealth v. Depina, 456 Mass. 238, 242 (2010). We agree with the motion judge's conclusion that at the time that the officers opened the doors of the unmarked cruiser they had reasonable suspicion that "at least Morales" was carrying a firearm and that he did not have a license to carry one. As in Evelyn, "evidence that the defendant was carrying a firearm weighs towards reasonable suspicion." 485 Mass. at 708, citing Commonwealth v. Rock, 429 Mass. 609, 612 (1999).
On appeal, the parties do not agree when the stop began. The defendant asserts that the stop started when the detectives got out of the unmarked cruiser after questioning the defendant about criminal activity. The Commonwealth maintains that simply getting out of the cruiser did not constitute a show of authority, and that the stop did not occur until after the men fled. See Commonwealth v. Resende, 474 Mass. 455, 461 (2016), and cases cited. In view of our disposition, we need not decide whether this case is distinguishable from Resende on the basis that the detective's inquiry regarding his suspicions would cause a reasonable person to believe that he would be compelled to stay.
We do not consider the characterization of the neighborhood as a "high crime area." The testimony supporting the characterization was vague and general, lacking in details or a "direct connection" to the defendant. Evelyn, 485 Mass. at 709.
It was at that juncture that the defendant took flight. The judge permissibly considered the flight to be inculpatory. See Commonwealth v. Sykes, 449 Mass. 308, 315 (2007). Together with the evidence suggesting that the defendant also had a firearm, there was reasonable suspicion to pursue the defendant and seize the firearm. The motion to suppress was properly denied.
2. Double jeopardy. The defendant submits that his convictions of possession of a firearm and of possession of a large capacity feeding device were duplicative. He maintains that the firearm and the magazine were recovered together as a single unit, and that it was improper for the jury to have separately considered possession of the firearm and the magazine.
The fact that the magazine was loaded in the firearm is not material to the double jeopardy analysis. In Commonwealth v. Vick, 454 Mass. 418, 434 (2009), the Supreme Judicial Court rejected any suggestion that Commonwealth v. St . Pierre, 377 Mass. 650 (1979), permitted the elements-based approach to double jeopardy claims to be supplemented by conduct-based considerations. "The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) . . . , and its progeny, is that 'a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.'" Vick, supra at 431, quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). "As long as each offense requires proof of an additional element that the other does not, 'neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].'" Vick, supra at 431, quoting Commonwealth v. Jones, 382 Mass. 387, 393 (1981).
Here, each offense contains an element the other does not. Possession of a firearm, see G. L. c. 269, § 10 (a), requires proof of possession of a "working firearm set forth in G. L. c. 140, § 121, that is, that it had a barrel less than sixteen inches long and was capable of discharging a bullet." Commonwealth v. White, 452 Mass. 133, 136 (2008). Possession of a large capacity magazine, see G. L. c. 269, § 10 (m), requires proof of possession of a "fixed or detachable magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition." Commonwealth v. Cassidy, 479 Mass. 527, 532 (2018), quoting G. L. c. 140, § 121. The offenses are not duplicative. Cf. Commonwealth v. Taylor, 486 Mass. 469, 473 (2020).
The Commonwealth need not prove that the firearm was loaded. Cf. Commonwealth v. Taylor, 486 Mass. 469, 473 (2020).
The defendant's reliance on Commonwealth v. Costa, 65 Mass. App. Ct. 227 (2005), is misplaced. There the defendant was charged with possession of a large capacity firearm as well as possession of a firearm. Id. at 228. The latter was held to be a lesser included offense. Id. at 235. Here the defendant was charged with possession of a large capacity feeding device, not a large capacity firearm.
The defendant further maintains that it is artificial and punitive to divorce the device from the firearm, and that the defendant should have been charged with one count of possession of a large capacity firearm. In the ordinary course we are barred by art. 30 of the Massachusetts Declaration of Rights from reviewing the charging decisions of the prosecutor. See Commonwealth v. Pyles, 423 Mass. 717, 719-720 (1996); Commonwealth v. Manning, 75 Mass. App. Ct. 829, 831-832 (2009). In any event, the Legislature has expressly permitted the type of charges filed here. Section 10 (a) bars possession of a firearm without a license, while § 10 (m) prohibits "knowingly possessing or having under their control a large capacity weapon or large capacity feeding device unless they possess a class A or class B license to carry firearms" (quotation omitted; emphasis added). Cassidy, 479 Mass. at 532. "It bears repeating that, where, as here, neither crime is a lesser included offense of the other, multiple punishments are permitted even where the offenses arise from the very same criminal event." Vick, 454 Mass. at 436.
At oral argument the prosecutor represented that the decision was made to charge in this fashion because crimes arising under § 10 (m) are not predicate offenses under the armed career criminal act, while offenses arising under § 10 (a) are predicate offenses. See G. L. c. 269, § 10G.
3. Sufficiency of the evidence. Finally, the defendant argues that the trial judge improperly denied his motion for a required finding of not guilty because there was insufficient evidence of knowledge.
"We review the denial of a motion for a required finding of not guilty to determine 'whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury
beyond a reasonable doubt of the existence of every element of the crime charged.'"Commonwealth v. Barry, 481 Mass. 388, 397-398 (2019), quoting Commonwealth v. Whitaker, 460 Mass. 409, 416 (2011).
The defendant contends that the Commonwealth has not shown that he knew that the gun was loaded or that it held a large capacity feeding device. While we acknowledge that this case presents a close question, we conclude that the evidence was sufficient to prove possession of ammunition, as well as possession of a large capacity feeding device.
To sustain a conviction of unlawful possession of ammunition contained in a loaded firearm in violation of G. L. c. 269, § 10 (h), the Commonwealth must prove beyond a reasonable doubt that "[the] individual who possessed a firearm was aware that it was loaded." Commonwealth v. Brown, 479 Mass. 600, 608 (2018). See Commonwealth v. Johnson, 461 Mass. 44, 53 (2011) ("To convict the defendant of unlawful possession of ammunition, the Commonwealth was required to prove that the defendant knowingly possessed ammunition that met the legal definition of ammunition"). With respect to the possession of a large capacity feeding device, "the Commonwealth must prove that a defendant either knew a firearm or feeding device he or she possessed qualifies as having a large capacity under the statute or knew that the firearm or feeding device is capable of holding more than ten rounds of ammunition." Cassidy, 479 Mass. at 536. "[K]nowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon." Id. at 537, quoting Staples v. United States, 511 U.S. 600, 615 n.11 (1994).
At trial, the Commonwealth introduced into evidence the firearm, magazine, and sixteen of the seventeen rounds of ammunition recovered from the magazine. We have been provided with photographs of the magazine next to the firearm. The rounds in the magazine are separately numbered, with the number "17" at the base. The Commonwealth asserts that the jury could infer that the large capacity magazine extended beyond the base of the gun, with the number "17" plainly visible. On this basis, the Commonwealth says, there were sufficient facts to show that the defendant knew the firearm was loaded with a large capacity feeding device.
The seventeenth round had been used to test fire the firearm. The jury were given the opportunity to view the firearm, magazine, and ammunition, though the ammunition and firearm were viewed separately.
The photographs before us present far too ambiguous a picture to conclude that they show that the magazine extended below the base of the firearm. The bottom of the handle and the base of the magazine would appear to be of a shape and size meant to fit together. There are no photographs showing the magazine in the firearm, and the photographs do not provide any indication how far up the handle the magazine would go, how far it would have to go to chamber a round, or if it would protrude. However, our inquiry does not end there.
The magazine was found in a firearm that was on the defendant's person, and which he discarded in his flight from the police. The officers testified at trial that the defendant checked his hip while speaking with the police, a movement which the officers attributed to checking for a weapon lodged there. In addition, Detective Kew testified that he saw the defendant reach for his waistband before he threw the firearm aside. Viewed in the light most favorable to the Commonwealth, the fact that the defendant had a firearm, coupled with the inference that it was on or near his hip, would permit a rational jury to find that the defendant holstered the firearm in his waistband. "A commonsense inference from that fact alone is that a person would check to see if the firearm was loaded before putting it in his waistband." Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200 (2018). A cursory check of the magazine would have revealed the ammunition, and also would have revealed that the magazine held seventeen rounds. See, e.g., Commonwealth v. Silvelo, 486 Mass. 13, 19 (2020). The judge did not err in denying the motion for required finding.
Judgments affirmed.
By the Court (Wolohojian, Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 4, 2021.