COMMONWEALTH v. KILLINGS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

While executing search warrants at the defendant's one-bedroom apartment, police discovered, inter alia, two firearms and 106 rounds of ammunition within a bag in the defendant's bedroom closet. The defendant, James Killings, was ultimately convicted of two counts of unlawful possession of a firearm without a firearm identification (FID) card, one count of unlawful possession of ammunition, and one count of unlawful possession of a large capacity ammunition feeding device or firearm. On appeal, the defendant claims that statements he made to police should have been suppressed and that the Commonwealth's evidence was insufficient to prove he had knowledge of the capacity of the ammunition feeding device. We affirm.

Background. At approximately 10 a.m. on the morning of January 28, 2016, Officer Monahan and four other Boston police officers executed warrants for the defendant and the defendant's one-bedroom apartment.² Officer Monahan knocked on the defendant's apartment door and when the defendant opened the door, Officer Monahan recited the Miranda warnings and asked the defendant whether he understood them. The defendant replied that he understood. The interaction was “calm” and Officer Monahan described the defendant as a “gentleman.” ³ Officer Monahan did not perceive the defendant to be under the influence of alcohol or narcotics.

The police then escorted the defendant back into his apartment and directed that he sit in a chair in the living room while the officers executed the search. The defendant was not handcuffed. During the search, Officer Monahan asked the defendant where the targeted materials of the search ⁴ were located. He told the defendant that the police would not need to “trash” his apartment while searching if he simply told them where the items could be found. The defendant did not comply with the officer's request.

The search proceeded and Officer Monahan discovered a BB gun in a box in the bedroom that appeared to be an authentic firearm. He showed the defendant the BB gun and asked the defendant if there were more firearms in the apartment. The defendant responded that there was a “.32 in a black bag in his closet” that he received from his aunt. Officer Samaras of the Boston Police Department indeed located a black bag inside the defendant's closet and examined its contents. Inside the bag, there was a plastic baggie with fourteen nine millimeter cartridges and thirty-seven .32 caliber cartridges, a pair of brass knuckles, “a Glock semiautomatic handgun with a magazine just below it,” a velvet bag with forty-three .22 caliber cartridges, and a black revolver. While the firearms were not loaded, the magazine was discovered to contain twelve nine millimeter rounds of ammunition.

After determining the contents of the bag, Officer Samaras returned to the living room and asked the defendant whether the BB gun and the revolver were the only firearms in the apartment. The defendant responded affirmatively. When the officer asked him about the Glock semiautomatic handgun, the defendant replied, “[O]h, the 9, I bought that for protection.” He later admitted that he did not have a firearm license permitting him to possess firearms. During the course of the search, the police also discovered two plastic bags with heroin or heroin residue and a prescription pill bottle of suboxone. The defendant had a weekly prescription for suboxone that had been filled the day before. None of the pills were missing from the bottle.

A criminologist from the Boston Police Department firearms analysis unit determined that the two firearms were in working order and the detachable feeding device was capable of holding fifteen rounds of ammunition. The defendant was subsequently charged with two counts of unlawful possession of a firearm without a FID card under G. L. c. 269, § 10 (h), one count of unlawful possession of ammunition under G. L. c. 269, § 10 (h) (1), one count of unlawful possession of a large capacity feeding device or firearm under G. L. c. 269, § 10 (m), and one count of possession of heroin under G. L. c. 94C, § 34.

The defendant filed a motion to suppress his statements made to police.⁵ At the evidentiary hearing, Officer Monahan was the only witness to testify,⁶ and his testimony was credited by the judge. The judge entered findings of fact, including that the defendant did not appear to be impaired by suboxone or any other substance. The motion to suppress was denied.

Following a bench trial before the same judge who ruled on the motion to suppress, the defendant was found guilty of the ammunition and firearm related offenses.⁷ This appeal timely followed.

Discussion. 1. Motion to suppress. The defendant argues that his suppression motion should have been allowed for three reasons: first, because he never made an express waiver of his Miranda rights and was not informed he had a right to not waive them; second, because the evidence showed he was “possibly impaired by drugs” at the time of the waiver; and third, that the police induced his later statements by threatening to otherwise “trash” his apartment.

The judge's findings of fact are accepted absent clear error. Commonwealth v. Welch, 420 Mass. 646, 651 (1995). We “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). An individual in police custody “may waive effectuation of [Miranda] rights, provided the waiver is made voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). That determination is made in light of the totality of the circumstances, including but not limited to “the conduct of the defendant, his physical and mental condition, his age, and the details of the interrogation.” Commonwealth v. Wilborne, 382 Mass. 241, 252 (1981).

We note that the defendant's first claim regarding a lack of an expressed Miranda waiver was not raised below and is thus waived and need not be addressed. Commonwealth v. Silva, 440 Mass. 772, 781-782 (2004).⁸ Regarding the defendant's claim of possible impairment at the time of waiver, the totality of the circumstances reflects no abuse of discretion in the judge's conclusion that the defendant was not under the influence or otherwise impaired at the time of his Miranda waiver. We accept the judge's factual finding that the defendant had no outward manifestation of drug use. The defendant “seemed fine” and was calm in his conversations with Officer Monahan. There were no missing suboxone pills from the only pill bottle found by police, and the search took place mid-morning. Officer Monahan had no communication issues with the defendant. None of the evidence, apart from the defendant's own discredited affidavit, see note 5, supra, supports an inference that the defendant was under the influence of suboxone, heroin, or any other substance.

Finally, the defendant's statements to police were not coerced by Officer Monahan's remark about “trashing” the defendant's apartment. See Commonwealth v. Montoya, 464 Mass. 566, 578 (2013). There is no merit to the defendant's arguments regarding the suppression motion.

2. Sufficiency of the evidence. The defendant also argues that the Commonwealth's evidence was insufficient to prove the requisite knowledge element of possession of a large capacity firearm or magazine. When considering an insufficient evidence claim, 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” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). “[T]o sustain a conviction under G. L. c. 269, § 10 (m), the Commonwealth must prove that a defendant either knew the firearm or feeding device met the legal definition of ‘large capacity’ or knew it was capable of holding more than ten rounds of ammunition.” Commonwealth v. Cassidy, 479 Mass. 527, 529 (2018). “[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). Factors may include how long the defendant has owned the firearm, whether the defendant has fired the firearm and is familiar with firearms more generally, whether the magazine is noticeably larger than a magazine holding ten rounds, and where the firearm was found. See Commonwealth v. Resende, 94 Mass. App. Ct. 194, 201-202 (2018).

Here, we conclude that the evidence was sufficient to support a finding that the defendant possessed the requisite knowledge for conviction. Although the magazine did not appear to be “obviously large” from the photographs in evidence, see Resende, 94 Mass. App. Ct. at 202, the defendant admitted that he acquired the firearm “for protection.” The magazine was loaded with twelve rounds when found by police.⁹ The defendant admitted that he had made a holster for the gun, which reflects some degree of knowledge and comfort with firearms. See Cassidy, 479 Mass. at 537-538 (knowledge was partially proved by defendant's admission “that he did not fully load magazine” to avoid wearing out firearm's spring). Viewing the evidence in the light most favorable to the Commonwealth, we conclude that a rational trier of fact could find the knowledge element satisfied beyond a reasonable doubt.

Judgments affirmed.

FOOTNOTES

2.   Police believed that the defendant was selling suboxone, a prescription drug, from his apartment.

3.   The defendant was sixty years old at the time.

4.   The police were searching for suboxone pills and other controlled substances, articles and instruments used to package or distribute suboxone, notes and ledgers related to suboxone sales, keys and personal papers showing ownership or control of the premises where controlled substances were found, and any money and financial documents related to the sale of controlled substances.

5.   At the suppression hearing, the defendant argued, inter alia, that his Miranda waiver was not knowingly, voluntarily, or intelligently made because he was possibly under the influence of suboxone or heroin and because the police engaged in “coercive tactic[s]” by threatening to “tear apart” his apartment.

6.   The defendant submitted an affidavit accompanying his motion to suppress that claimed he was under the influence of “medications” at the time of the search. The judge found no evidence to support that claim.

7.   The heroin possession count was dismissed for want of prosecution.

8.   We likewise decline to address the defendant's argument, made for the first time on appeal, that art. 12 of the Massachusetts Declaration of Rights bars implicit Miranda waivers.

9.   The police found fourteen other nine millimeter rounds in the defendant's bag.