5 Mass. App. Ct. 398 | Mass. App. Ct. | 1977
After a jury trial subject to G. L. c. 278, §§ 33A-33G, the defendant was convicted on separate complaints charging the receiving of stolen property (a firearm) and unlawfully carrying a firearm in a motor vehicle and was sentenced.
On July 1, 1975, at approximately 2:40 A.M. the defendant, accompanied by three other persons, was proceeding in a motor vehicle along Arsenal Street in Watertown. The vehicle was owned by the defendant and was being driven by his brother, Alvin. At that time Officers Seminara and Murphy of the Watertown police department were on patrol on Arsenal Street in a police cruiser. The defendant’s vehicle passed the cruiser, which was heading in the same direction. After the defendant’s vehicle had passed, the officers observed that the vehicle’s rear number plate was not lighted. Thereupon the officers signalled for the defendant’s vehicle to stop, which it did.
Both officers got out of the cruiser. Seminara walked up to the driver’s door while Murphy stood at the right rear of the defendant’s car. Seminara requested the operator to produce his driver’s license and the vehicle’s registration certificate. The driver presented his license but was unable to locate the registration, either in the glove compartment or over the sun visor. At this point the defend-^ ant suggested that the registration might be in the trunk
Before trial the defendant moved to suppress the items which had been taken by the police from the attaché case in the trunk. That motion was denied.
1. The defendant assigns as error the denial of his motion to suppress, arguing that the firearm was obtained as the result of an illegal search and seizure. After a hearing the judge found and ruled as follows: “I rule that the motion to suppress must be denied. It appears to the Court that there was no search and seizure here. The defendant voluntarily went to the trunk of his car and having unlocked and opened it, proceeded to open the attaché case in search of his certificate of registration for the motor vehicle. The ammunition clip and the butt of the [pistol] came into the view of the police officer at that point. Whether one were to term this a search with consent or a voluntary disclosure by the defendant of the articles seized would seem to be of no consequence. The officer did nothing other than request to see the registration to the car, and what followed was the result of the defendant’s voluntary action____It was the defendant who suggested
When Officer Seminara observed the ammunition clip and the butt of the gun protruding from the paper bag, he had the right to seize them. “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U. S. 234, 236 (1968). Commonwealth v. Fields, 2 Mass. App. Ct. 679, 681-682 (1974). The motion judge did not err in denying the defendant’s motion to suppress.
2. The defendant’s second assignment of error basically claims error in the admission of the firearm in evidence. Without deciding whether all the reasons enumerated by the defendant as bases for his exceptions are properly before us, we deal with each below, (a) The defendant’s first contention that the firearm was obtained illegally has already been answered in part 1 of this opinion, (b) The defendant argues that the Commonwealth failed to establish a proper foundation upon which the weapon could be admitted as being an “operable” firearm. While it is true that at the time the firearm was admitted in evidence there had not been any expert testimony presented to establish whether the firearm was operable, Officer Seminara later testified that he had successfully test fired that weapon by using the cartridges in the ammunition clip that had also been seized from the trunk of the defendant’s vehicle. It was within the sound discretion of the trial judge to allow the evidence to be introduced in this order. Commonwealth v. Eppich, 342 Mass. 487, 494-495 (1961). Furthermore, the firearm was admissible as it was
3. The defendant’s last assignment of error is based on two exceptions taken to the judge’s charge. Both exceptions related to that portion of the charge which explained what elements must be found to constitute “control” of a firearm in a motor vehicle under G. L. c. 269, § 10 (a). The defendant attempts to expand the effect of his exceptions to cover numerous claimed errors unrelated to those exceptions. We deal only with the rulings to which those exceptions were noted. Commonwealth v. Dupont, 2 Mass. App. Ct. 566, 571 (1974). The defendant excepted to the judge’s refusal to charge the jury that “under his control in a motor vehicle means [that] it [a firearm] has to be accessible in the motor vehicle,” citing Commonwealth v. Boone, 356 Mass. 85 (1969), in support of that proposition. However, the holding of Boone was that one must have knowledge of the presence of a weapon in order to be guilty of having control of a firearm in a motor vehicle under what is now G. L. c. 269, § 10 (a). We have read the judge’s instructions on the question of control and conclude that they were not erroneous.
Judgments affirmed.
Complaint No. 75-4193 charged the defendant, pursuant to G. L. c. 266, § 60, with receiving stolen property (a Browning automatic hand gun, 9 millimeter, .45 calibre frame, serial no. 69-C-5591), and complaint no. 75-4194 charged the defendant under G. L. c. 269, § 10(a), with having a firearm under his control in a motor vehicle without permission.