COMMONWEALTH v. DORELAS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of multiple firearms offenses.³ In this consolidated appeal, he claims that the trial judge erred in denying his motion for new trial based on ineffective assistance because his counsel did not move to suppress Jamal Boucicault's statements to the police. We affirm.

A motion for new trial is granted “only in extraordinary circumstances,” Commonwealth v. Comita, 441 Mass. 86, 93 (2004), when “it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). “[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Comita, supra at 91. The defendant did not meet his burden because he did not have standing to challenge Boucicault's statement. That is, the privilege against self-incrimination is personal and cannot be claimed on behalf of another. See Smith v. Commonwealth, 386 Mass. 345, 349 (1982).

Nevertheless, the defendant claims he has “target standing”⁴ to challenge Boucicault's statements. The Supreme Judicial Court has declined to adopt target standing under art. 14 of the Massachusetts Declaration of Rights.⁵ See Commonwealth v. Santiago, 470 Mass. 574, 577-578 (2015). However, the court noted that in cases where police misconduct is “distinctly egregious,” the “need to create a deterrent effect may require, or at least make appropriate, recognition of target standing” (citation omitted). Id. at 578.

Here, even if we were to entertain target standing's validity, there was simply no misconduct, let alone “distinctly egregious” police misconduct. Santiago, 470 Mass. at 578. The defendant's claim that Boucicault's Miranda rights were violated has no merit as Boucicault was not in custody when he spoke to the police. See Commonwealth v. Martin, 444 Mass. 213, 218-219 (2005) (Miranda warnings required for custodial interrogation). Boucicault was standing with the defendant when officers arrived at the defendant's residence. There is no indication that Boucicault was restrained or told he could not leave. Furthermore, “[t]here is no requirement that warnings be given prior to ‘[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.’ ” Commonwealth v. Merritt, 14 Mass. App. Ct. 601, 604 (1982), quoting Miranda v. Arizona, 384 U.S. 436, 477 (1966).

Even if Boucicault was in custody, the police still did not engage in misconduct. Police may ask questions in order to secure their own safety or the safety of the public. See Commonwealth v. Loadholt, 456 Mass. 411, 418 (2010). “[T]he presence of a loaded gun in or about a private residence ․ may present a substantial threat to a number of persons including an arresting officer.” Commonwealth v. Alan A., 47 Mass. App. Ct. 271, 275 (1999). Here, police were informed that a shoot-out had occurred and that the defendant was armed with a firearm before arriving on scene. Boucicault, present with the defendant when officers arrived, could have been a witness to the shooting and its aftermath. Police were entitled to learn the location of the firearm and secure it for their safety. Accordingly, the defendant has failed to show that had counsel brought a motion to suppress it would have been successful.⁶ See Comita, 441 Mass. at 91. In that light, the motion for new trial was properly denied.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

3.   Specifically, the defendant was convicted of unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a loaded firearm, and unlawful possession of a large capacity feeding device.

4.   The theory of target standing permits the defendant, a “big fish,” to “rely on the violation of the rights of the small fish, as to whose prosecution the police are relatively indifferent.” Commonwealth v. Manning, 406 Mass. 425, 429 (1990).

5.   The United States Supreme Court rejected the concept of target standing in Rakas v. Illinois, 439 U.S. 128, 133 (1978).

6.   The defendant also claims that the search warrant affidavit lacked probable cause because it included Boucicault's later statements made at the police station. This additional claim is without merit. Even if Boucicault's statements were excised from the affidavit, it still provided probable cause for the search.