Evidence – Police Pursuit – G.L.c. 209A Affidavit

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Where a defendant (1) was convicted of unlawful possession of a handgun and ammunition, as well as other offenses, and (2) asserts on appeal that certain evidence should have been suppressed at trial because it was seized as the result of an unjustified police pursuit, we conclude that an order denying the defendant’s motion to suppress was proper in light of the fact that the police had reasonable suspicion of illegal conduct on the part of the defendant.

Having so held, and concluding that the defendant was not unfairly prejudiced by the trial judge’s erroneous admission of an affidavit executed by the defendant’s former girlfriend to obtain a restraining order against him under G.L.c. 209A, we affirm the convictions.

Police Conduct

“Where Sergeant Cabral had received a report from a disinterested citizen that gunfire had been discharged from an older blue Oldsmobile with a white top in the vicinity of 102 Broadway Street [in Somerville] in a residential and commercial neighborhood at 4:00 A.M., and where Sergeant Cabral saw a vehicle that fit the description in the report some forty-five minutes later traveling west on Broadway Street about one and one-half miles from 102 Broadway, we decide that the judge properly concluded that these facts gave rise to a reasonable suspicion that the defendant’s car might have been involved in the shooting, thus justifying an investigative stop and inquiry. … As in Commonwealth v. Alvarado, 427 Mass. [277,] 283 (1998)], the nature of the citizen’s report here disclosed an imminent danger to public safety warranting at least an investigatory stop of the defendant’s vehicle where it fit the description of the car in the report and was observed in both physical and temporal proximity to the scene of the shooting. Because the stop of the defendant’s car was legal, the motion judge properly rejected the defendant’s argument that the gun, ammunition, and cartridges should be suppressed as the fruits of the illegal stop.

“The defendant also argues that the ammunition and cartridges found in the car should have been suppressed because the search of the defendant’s car was conducted by Sergeant Cabral without a warrant. The search occurred after the defendant had been removed from his car and placed under arrest for failure to stop for a police officer and, thus, the defendant argues, it could not have been justified as a search incident to arrest. Although the motion judge made no written findings relating to the search of the automobile and seizure of the ammunition and cartridges, she indicated at the conclusion of the hearing that she was going to deny the motion to suppress this evidence based on the prosecutor’s argument. The prosecutor had argued alternatively that the warrantless search of the car was justified as an inventory search, which the defendant does not challenge, or as a search for evidence of the crime initiating the police officer’s pursuit, namely the discharging of a firearm within 500 feet of a dwelling. The motion to suppress was properly denied because Sergeant Cabral would have had probable cause to search the car for evidence of the crime which resulted in his initial pursuit of the defendant’s vehicle, namely the discharging of a firearm within 500 feet of a dwelling. At the time of the search, Sergeant Cabral knew that a witness had reported gunfire from a vehicle matching the description of the defendant’s car, and he had seen the defendant discard what he believed to be a gun and flee from his pursuit. This information gave Sergeant Cabral probable cause to search the vehicle for evidence of the crime resulting in the pursuit. …”

209A Affidavit

“The defendant argues that the trial judge committed reversible error in allowing in evidence over the objection of the defendant an affidavit executed by the defendant’s former girlfriend under the pains and penalties of perjury in support of her application for a restraining order against the defendant under G.L.c. 209A. The defendant argues that its admission was not harmless error because the affidavit contained evidence of prior bad acts of the defendant which would supply a motive or intent for the defendant’s alleged actions.

“We summarize the evidence pertinent to the issue of whether the affidavit was admissible. The defendant’s former girlfriend, Gabriella Correia, was called as a witness for the prosecution. After answering preliminary questions about her name, address, occupation and ownership of a hair salon at 102 Broadway Street, she was asked by the prosecutor whether the defendant came to her hair salon on May 12, 1995, to which she responded she did not recall. To refresh her memory, the Commonwealth showed her a document, purportedly the affidavit she had executed on the evening of May 14, 1995, to obtain a restraining order against the defendant. After the witness examined the affidavit, she testified that although her signature appeared at the bottom of the page, the document was not written by her; that she did not remember applying for a restraining order against the defendant; and that she had no memory of the occurrence of any of the events set forth therein. The prosecutor then asked that the document be admitted in evidence. Over the objection of the defendant, the judge ruled the affidavit admissible as an exhibit, asserting as her rationale the fact that it was a statement made under the penalties of perjury which had been relied upon by a judge to issue a restraining order. Subsequently, in her instructions to the jury, she advised the jury that the affidavit could be used both as substantive evidence and for purposes of the prosecutor’s impeachment of the witness.

“We address first the use of the affidavit as substantive evidence. In admitting the affidavit, the judge apparently relied upon Proposed Mass.R.Evid. 801(d)(1)(A), which allows as substantive evidence prior inconsistent statements that were made under oath at an official proceeding and are offered against a declarant who is testifying at trial and is subject to cross-examination concerning the statements. Where the prerequisites of the rule are met, testimony before a grand jury and at a probable cause hearing have been admitted for substantive purposes. … However, in this case, two prerequisites for the admission of the evidence are at issue. One is the existence of an inconsistent statement. Ordinarily, there is no inconsistency between a present failure of memory on the witness stand and a past existence of memory. … Of greater import, however, is the opportunity for meaningful cross-examination of the declarant about the prior statement at trial. … ‘When the witness at trial has no recollection of the events to which the statement relates, this requirement … is not met.’ … Such was the case here and, thus, the affidavit should not have been admitted as substantive evidence.

“It is a much closer issue whether the affidavit was admissible to impeach the witness. The Supreme Judicial Court has left open the question whether, when the circumstances at trial indicate that a witness is falsifying a lack of memory, a judge may admit the prior statement as ‘inconsistent’ with the claim of lack of memory. … We believe that, in the circumstances presented, the trial judge did not abuse her discretion in admitting the affidavit for impeachment purposes.

“In any event, because it was error to admit the affidavit as substantive evidence over the objection of the defendant, we must decide whether the defendant was prejudiced by the admission of the affidavit in evidence. In order to rule the error harmless, we must be convinced that the error did not influence the jury or had but very slight effect. … We believe the admission of the affidavit would have had but very slight effect on the jury’s verdict because the affidavit’s content was cumulative of other evidence of the defendant’s motive and intent.”

Commonwealth v. Johnson (Lawyers Weekly No. 11-096-00) (11 pages) (Porada, J.) (Appeals Court) Motion to suppress heard by Quinlan, J.; cases tried before Dolan, J., in Superior Court. George L. Garfinkle for the defendant; Marguerite T. Grant for the commonwealth (Docket No. 98-P-2230).