COMMONWEALTH v. MORRIS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On January 23, 2018, the defendant was convicted, after a jury trial, of carrying a firearm without a license. G. L. c. 269, § 10 (a). He was sentenced to the house of correction for eighteen months nunc pro tunc to March 28, 2017 (the date the defendant was surrendered in a separate probation violation case), with 132 days of jail credit.² The defendant raises two issues in this, his direct appeal: first, he contends his motion to suppress should not have been denied without an evidentiary hearing; and second, he contends that a substantial risk of a miscarriage of justice resulted from the admission of certain deoxyribonucleic acid (DNA) testimony. In its cross appeal, the Commonwealth argues that the judge erred in imposing the sentence nunc pro tunc, and in calculating the amount of jail credit. We affirm.

We recite the following facts by way of background. Police responded to a call that a person had been shot in the area of 194 Humboldt Avenue in the Roxbury section of Boston and saw the defendant walking with two other men. The trio reversed direction when they noticed the police. The defendant was known to one of responding officers, Officer Curtin, because he (the defendant) had been shot approximately a week earlier. As Officer Curtin approached, one of the defendant's companions manipulated his waistband in a manner that suggested he was concealing a firearm. The defendant separated himself from the others and headed toward the front steps of 90 Crawford Street, an apartment building. When the police arrived a few seconds later, the defendant was descending the steps. When questioned, the three men said that they had just been shot at, but provided no further details. Patfrisks of the three yielded no weapons, and the officers allowed the men to leave. Officer Curtin then ascended the front steps of 90 Crawford Street, looked through the locked glass door into the foyer of the building, and saw a firearm partially wrapped in a gray sweatshirt. The officers then located the defendant and arrested him for unlawful possession of the firearm.

Motion to suppress. The defendant argues that the motion judge (who was not the trial judge) erred in denying his motion to suppress without an evidentiary hearing. He contends that an evidentiary hearing was required to determine whether anyone had an expectation of privacy in the locked foyer of the apartment building where the gun was located. We disagree. A judge does not abuse his or her discretion in denying a motion to suppress without an evidentiary hearing where, as here, the affidavit presents no facts supporting the theory of suppression. Commonwealth v. Rodwell, 394 Mass. 694, 698-699 (1985).

“Where a defendant has filed a motion to suppress alleging an unconstitutional search or seizure, the detail required in the motion and accompanying affidavit under [Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004),] must be sufficient to accomplish two practical purposes. First, it must be sufficient to enable a judge to determine whether to conduct an evidentiary hearing. See Costa v. Commonwealth, 440 Mass. 1003, 1004 (2003), quoting Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310, 313 (1986) (one purpose of rule 13 [a] [2] is to provide judge with ‘statement of anticipated evidence ․ to meet the defendant's initial burden of establishing the facts necessary to support’ motion). An evidentiary hearing is necessary only when the defendant has alleged facts that, if true, would establish (1) that evidence was obtained through a search or seizure for which the Commonwealth must prove probable cause, reasonable suspicion, or consent to search; and (2) that the defendant has standing to challenge the constitutionality of the search or seizure. Cf. Commonwealth v. Costa, 65 Mass. App. Ct. 227, 228-229 n.1 (2005). Second, the affidavit required under rule 13 (a) (2) must be sufficiently detailed to give fair notice to the prosecution of the particular search or seizure that the defendant is challenging, so that the prosecution may determine which witnesses it should call and what evidence it should offer to meet its burden of proving probable cause, reasonable suspicion, or consent. Costa v. Commonwealth, supra, quoting Commonwealth v. Santosuosso, supra (second purpose of rule 13 [a] [2] is to give Commonwealth ‘fair notice of the specific facts relied on in support of the motion’). See Commonwealth v. Silva, 440 Mass. 772, 781 (2004) (compliance with rule 13 [a] [2] ‘alerts the judge and the Commonwealth to the suppression theories at issue, and allows the Commonwealth to limit its evidence to these theories’).”

Commonwealth v. Mubdi, 456 Mass. 385, 389-390 (2010).

Neither the defendant's motion to suppress nor its accompanying affidavit was sufficient to alert the judge that he was challenging the discovery of the gun in the foyer. Instead, the defendant's motion argued only that the defendant was unlawfully stopped and arrested by police without reasonable suspicion, probable cause, or an arrest warrant. On this basis, the defendant moved to suppress “[a]ll observations made by the arresting officer or other officers of any police department coming in contact with the defendant as a result of the stop of the defendant,” “[a]ll statements made by the defendant,” and all “'fruits' derived from the unlawful stop.” Similarly, the defendant's affidavit was focused solely on the stop. It averred that the defendant had been “conducting [him]self in a peaceful, quiet and inoffensive manner, at all times” and that he “was unlawfully stopped, interrogated and arrested by officers of the Boston Police Department.” Neither the motion nor the affidavit forwarded the proposition that someone had a reasonable expectation of privacy in the foyer of the apartment building. In these circumstances, the judge did not abuse her discretion in failing to conduct an evidentiary hearing into that issue.

It is true that at the nonevidentiary hearing on the motion, the prosecutor opposed the motion by, among other things, pointing to the fact that the gun had been located in a common foyer before -- and not as a result of -- the stop or arrest of the defendant. It is also true that the judge inquired whether the defendant lived at the apartment building, and that the parties agreed that he did not. However, at no point did the defendant suggest that he was seeking to suppress the gun on any basis other than those raised in his motion and affidavit. Specifically, he did not challenge that the apartment building foyer was a common area in which no one had a reasonable expectation of privacy. See Commonwealth v. Dora, 57 Mass. App. Ct. 141, 145-147 (2003). Thus, nothing was raised at the hearing that would have required the judge to conduct an evidentiary hearing.

Pointing to the judge's margin notation that the “[d]efendant has not shown any expectation of privacy in the area where the firearm and sweatshirt were recovered,” the defendant argues that the judge relied on an erroneous understanding of the law when she decided that an evidentiary hearing was not required. We disagree. The judge did not indicate that the defendant was required to show that he himself had an expectation of privacy in the foyer. Instead, we read the judge's use of the word “any” to indicate that the defendant needed to show that someone had an expectation of privacy in the foyer of the apartment building. Even though the defendant, having automatic standing, did not need to show that he had a reasonable expectation of privacy in the foyer, see Mubdi, 456 Mass. at 392, he needed to show that “someone had a reasonable expectation of privacy in the place searched, because only then would probable cause, reasonable suspicion, or consent be required to justify the search.” Id. at 393, citing Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). Again, as we have stated, the defendant's motion, affidavit, and statements during the hearing did not suggest that he was seeking to suppress because someone had a privacy interest in the apartment building foyer.

DNA evidence. The Commonwealth's DNA analyst testified about DNA found on the sweatshirt in which the gun was wrapped and DNA from an oral swab taken from the defendant. The analyst testified that her comparison of the two led her to conclude that the defendant “is included as being the possible primary component to the mixture” on the sweatshirt, meaning that “what I pulled out with the primary component [from the sweatshirt] were the same characteristics that I saw from the oral swab.” When asked to explain the statistical significance of her comparison, the analyst testified that “the following frequencies are the approximate number of indiwi -- individuals that could possibly -- expected to be included as a possible contributor to the primary component: 1 in 8.1 trillion Caucasians, 1 in 4.8 trillion Hispanics, and 1 in 8.1 African-Americans.”

The defendant argues that the analyst's testimony linking the rarity of the DNA sample among certain populations with her comparison of the DNA characteristics of the two samples was error resulting in a substantial risk of a miscarriage of justice. See Commonwealth v. Avila, 454 Mass. 744, 763 (2009) (standard of review for claim of unpreserved evidentiary error). We disagree. Where, as here, the Commonwealth seeks to introduce evidence suggesting that a defendant's DNA “matches” or somehow corresponds to another sample, the jury needed to be told “about the likelihood of that match occurring.” Commonwealth v. Mattei, 455 Mass. 840, 850 (2010). But neither the witness nor the Commonwealth should commit the “prosecutor's fallacy” by suggesting that “the random match probability is the same as the probability that the defendant was not the source of the DNA sample.” McDaniel v. Brown, 558 U.S. 120, 128 (2010). No such suggestion was made here, and the testimony was therefore not erroneously admitted.

Commonwealth's cross appeal. In its cross appeal, the Commonwealth challenges two aspects of the sentence. First, it argues that the trial judge did not have the power to impose the sentence nunc pro tunc to March 28, 2017, the date the defendant was surrendered in a separate probation violation case, because a judge's authority to impose an order nunc pro tunc is limited to rectifying mistakes or oversights. See Commonwealth v. Yasin, 483 Mass. 343, 353 (2019) (“The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direction or adjudication of the court made actually or inferentially at an earlier time, which by accident, mistake or oversight was not made matter of record, or to validate some proceeding actually taken but by oversight or mistake not authorized,” or “to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequent to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement” [quotation omitted]). But the proper use of nunc pro tunc orders is not as narrow as the Commonwealth contends. Indeed, a judge has discretion to impose a concurrent sentence nunc pro tunc to the commencement of a separate unrelated sentence. See Commonwealth v. Lydon, 477 Mass. 1013, 1014 (2017). See also Commonwealth v. Walters, 479 Mass. 277, 284 (2018) (nunc pro tunc order used in resentencing); Commonwealth v. Barton, 74 Mass. App. Ct. 912, 914 (2009) (concurrent sentence may be imposed “when multiple concurrent sentences for several different offenses that arise from several different criminal episodes, perhaps in different counties, but with circumstances being viewed by the later sentencing judge as warranting an order for the later-imposed sentences to begin on the same date as the first, nunc pro tunc”).

Second, the Commonwealth argues that the judge gave the defendant credit for time for which he had already received credit as part of his sentence on the earlier probation violation. This argument fails because it is made without adequate record support; the Commonwealth has not provided the details of the earlier sentence, and we are unable to infer them from the record.

Judgment affirmed.

FOOTNOTES

2.   The judge gave credit for the period September 22, 2016, to December 22, 2106 (ninety-two days), and February 16, 2017, to March 27, 2017 (forty days).