IRELAND, J.
On January 30, 2009, after a jury-waived trial in the Central Division of the Boston Municipal Court Department, the defendant, Aaron Powell,
1. Motion to suppress. Prior to trial, the defendant moved to suppress evidence, namely a firearm, that he claimed was the result of an unlawful seizure of his person under both the Fourth Amendment to the United States Constitution and art. 14. After an evidentiary hearing, the motion was denied.
In reviewing a decision on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error `but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing.
As the officers approached the intersection, they observed about twenty-five people who were separated into three groups. There were both men and women, and they appeared mainly to be teenagers with a couple of individuals appearing to be in their early twenties. One group was comprised of about ten individuals who were standing in the vicinity of 87 Maple Street, which was to the officers' right. The other two groups were across the street; one consisted of about five individuals and the other of approximately ten individuals.
Officer Roby was driving "very slowly." The windows in the vehicle were down. The officers did not activate any lights or sirens, and did nothing to indicate that they were police. The officers heard yelling between the two groups and saw individuals pointing at each other. It appeared to Officer Blas that an altercation was brewing. While driving between the groups, however, it became "eerily quiet." Officer Blas noticed one young man, the defendant, standing apart from the groups on the 87 Maple Street side of the street.
The defendant was not interacting with any other people, and looked away after he saw the officers. The defendant then walked on the sidewalk toward the officers and through the group congregating at 87 Maple Street. As he started walking, the defendant's right hand moved to his right hip, and his left hand moved to the center of his waist, as if he were grasping something which, based on Officer Blas's experience and training, appeared to be a gun. Once the defendant got past the group, he started to run.
The defendant turned left and ran to a fence along the driveway. As he tried to climb the fence, the defendant dropped the revolver to the ground. Unable to get over the fence, the defendant ran between the fence and a vehicle parked in the driveway in the rear area of the garage. Officer Blas lost sight of the defendant for a few seconds. The defendant emerged from the left side of the driveway, charging at Officer Blas with his hands clutched in fists. Officer Blas moved to his side, and the defendant ran into Officer Roby who had been trailing Officer Blas. The defendant knocked Officer Roby's flashlight out of his hand. Officer Blas placed his gun in his holster and chased the defendant down Sonoma Street. Officer Blas eventually caught up with the defendant when he ran into two armed security guards who worked in the neighborhood. Officer Blas arrested the defendant. Officer Roby secured the revolver dropped by the defendant, which police soon determined to be loaded.
The motion judge made his findings and stated his conclusions orally. He first stated that Officer Blas "had a reasonable and articulable suspicion that the defendant was in possession of a weapon" based on Officer Blas's training and experience, and based on the defendant's actions. The judge concluded that no seizure of the defendant had occurred in the constitutional sense until Officer Blas told the defendant to drop his weapon. At that time, because the defendant had drawn a weapon on Officer Blas, there was "reasonable suspicion [that] became probable cause to arrest." The judge went on to determine that the defendant abandoned his weapon when he tried to climb the fence, and that after its abandonment, the defendant did not retain any
On appeal, the defendant contends that his seizure was unsupported by reasonable suspicion under art. 14. See note 6, supra. In Commonwealth v. Franklin, 456 Mass. 818, 820 (2010), we stated that whether a seizure has occurred "requires a two-fold determination: whether a seizure has taken place at all and, if so, the precise point in time at which the seizure occurred." We explained that "[a] person is `seized' by a police officer `if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Id., quoting Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001).
We first must determine when the defendant was seized. Commonwealth v. Narcisse, 457 Mass. 1, 5 (2010). The defendant asserts that his seizure took place when Officer Blas got out of the unmarked police cruiser and pursued him on foot. While there may be instances where a police pursuit is the "functional equivalent" of a seizure, see, e.g., Commonwealth v. Stoute, 422 Mass. 782, 789 (1996), we have, in Commonwealth v. Franklin, supra at 822, recently "clarified the circumstances in which police pursuit of an individual sufficiently indicates that the person pursued is not free to leave, so that a seizure in the constitutional sense has occurred:"
This case is similar to Commonwealth v. Franklin, supra at 819-823. In that case, the defendant's flight was not prompted by anything the police did. When Officer Blas began following the defendant on foot, he had not exercised any show of authority or commanded the defendant to stop; and the officers had not blocked or impeded the defendant's path. It was not until Officer Blas drew his weapon, pointed it at the defendant, and commanded the defendant to "[d]rop it," that a seizure occurred.
2. Sufficiency of the evidence. In determining the validity of a claim challenging the sufficiency of the Commonwealth's
a. Resisting arrest. The defendant contends that the trial judge erred in denying his motion for a required finding on the charge of resisting arrest because there was insufficient evidence that (1) the defendant knew that the people chasing him were police; (2) the defendant was under arrest; and (3) the defendant's conduct amounted to resisting arrest. We reject his contentions.
General Laws c. 268, § 32B (a), reads in pertinent part:
Contrary to the defendant's assertion, there was sufficient evidence from which a rational trier of fact, here the trial judge, could have inferred that the defendant knew that the two men following him were police officers. Officer Roby was wearing a Boston police badge around his neck on a medallion and a sweatshirt on which a Boston police badge was imprinted and the words "Gang Unit" appeared on a sleeve. The unmarked cruiser that Officers Roby and Blas were driving was recognized in the community as being a vehicle commonly used by police. Because the three groups of people grew silent as the unmarked cruiser neared, it could be reasonably inferred that everyone knew (or at least suspected) that the men inside were police officers. The judge also could have reasonably concluded that the defendant's actions of walking away and then breaking into a run, after the unmarked cruiser passed and the defendant bore witness to the resulting silence, indicated that the defendant, too, understood that the men inside the vehicle were police. Further, Officer Blas's act of drawing his firearm and ordering the defendant to drop his weapon constituted a classic police command, readily understood as such.
We also reject the defendant's contention that there was insufficient evidence that the police wished to do anything other than stop him. In this case, the functional equivalent of a seizure, the first element of an arrest, see Commonwealth v. Stoute, 422 Mass. 782, 789 (1996), occurred when just after the defendant pulled out a firearm from his waist, Officer Blas drew his firearm,
There is no merit to the defendant's argument that there was insufficient evidence that he "resisted" arrest because he was "simply running away," and only made "contact" with Officer Roby because "Roby stepped in his path." Here, there was evidence that the defendant "threaten[ed] to use physical force or violence," G. L. c. 268, § 32B, against Officer Blas when he charged out at him from the darkness of the left side of the driveway (the right side of the garage). The defendant then used "physical force," G. L. c. 268, § 32B, against Officer Roby when he ran into him, knocked his hand, and hit his flashlight
b. Possession of a firearm without a firearm identification card. The defendant argues that the Commonwealth presented insufficient evidence of possession of an unlicensed firearm because there was no evidence that he lacked a firearms license. He contends that, consequently, his conviction violates the due process clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We repeatedly have held that in prosecutions under G. L. c. 269, § 10 (a) and (h), the Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant, under G. L. c. 278, § 7,
3. Ineffective assistance of trial counsel. At trial, Officer Blas testified that after handcuffing the defendant, he asked the defendant (without first giving Miranda warnings) why he ran and whether he had a license for the firearm. The defendant replied that he did not have a firearm. The defendant argues that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the defendant's statement in response to Officer Blas. The defendant contends that, had the statement not been in evidence, the Commonwealth could not have met its burden of proof on the licensing element on the charge of possession
In claims of ineffective assistance of counsel, we examine whether there has been "serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When, as here, a defendant raises an ineffective assistance argument for the first time on direct appeal instead of in a motion for a new trial, "we will reverse the defendant's convictions only if the ineffectiveness `appears indisputedly on the trial record.'" Commonwealth v. Medeiros, 456 Mass. 52, 61 (2010), quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
We conclude that, even if the defendant's trial counsel had filed a motion to suppress that was allowed, the absence of the statement at the defendant's trial did not likely deprive him of "an otherwise available, substantial ground of defence," Commonwealth v. Saferian, supra. As previously explained, it was not the Commonwealth's burden to prove that the defendant did not have a firearms license, see Commonwealth v. Jones, supra at 406. In addition, apart from the defendant's statement, there was other evidence from which the fact finder could infer consciousness of guilt, specifically, the defendant's behavior of attempting to conceal a weapon from the officers as well as evade them while doing so. Most significantly, there was the testimony from both officers that they saw the defendant holding a firearm. For these reasons, we conclude that there is no merit to the defendant's claim of ineffective assistance of counsel.
4. The defendant's Second Amendment claims. Citing McDonald v. Chicago, 130 S.Ct. 3020 (2010) (McDonald), and District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), the defendant argues that G. L. c. 269, § 10, and G. L. c. 140, § 131, are unconstitutional per se and as applied to him because they unduly restrict his right to bear arms and right to self-defense under the Second Amendment.
a. Overview of Heller and McDonald. In Heller, the United States Supreme Court held that the District of Columbia's "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Id. at 635. In doing so, the Court announced for the first time that the Second Amendment protects an individual right to keep and bear firearms in one's home for the purpose of self-defense, not simply a collective right to possess and carry arms for the purpose of maintaining a State militia. See id. at 594-620. The Court characterized this right as "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635.
The Court, however, qualified this right, stating that it is "not unlimited." Id. at 626. The Court affirmed its prior precedent saying that the right protected by the Second Amendment involves only the bearing of arms for a lawful purpose, see id. at 617-618, and explained, "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation." Id. at 595. In addition, the Court affirmed its prior precedent limiting the Second Amendment's reach with respect to the types of weapons possessed or carried, explaining, "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns," id. at 625, or "the carrying of `dangerous and unusual weapons,'" id. at 627, quoting 4 Blackstone 148-149 (1769). The Court declared that a citizen's Second Amendment right did not prohibit laws regulating who may possess and carry weapons or purchase them, or where such weapons may be carried. The Court explained: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications
In Heller, the Court acknowledged that in United States v. Cruikshank, 92 U.S. 542, 553 (1875) (Cruikshank), it held that "the Second Amendment does not by its own force apply to anyone other than the Federal Government." Heller, supra at 619. In Cruikshank, supra, the Court explained that the Second Amendment "means no more than that [the right to bear arms] shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government...." In Heller, the Court took note that in its decisions subsequent to Cruikshank, it "reaffirmed that the Second Amendment applies only to the Federal Government." Heller, supra at 620 n.23, citing Presser v. Illinois, 116 U.S. 252, 265 (1886), and Miller v. Texas, 153 U.S. 535, 538 (1894). The Court stated that the question whether the Cruikshank decision remains a continuing bar against application of the Second Amendment to the States was "not presented" to it. Heller, supra.
On June 28, 2010, the Court decided McDonald.
McDonald, supra at 3047.
b. Standing to raise constitutional claims. The Commonwealth argues that the defendant lacks standing to raise a Second Amendment claim because he did not properly preserve the issue for appeal by filing a pretrial motion, see Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986), or a motion for a required finding, see Commonwealth v. Oakes, 407 Mass. 92, 94 (1990). "We have excused the failure to raise a constitutional issue at trial ... when the constitutional theory on which the defendant has relied was not sufficiently developed at the time of trial... to afford the defendant a genuine opportunity to raise his claim." Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984), and cases cited. "When we excuse a defendant's failure to raise a constitutional issue at trial ..., we consider the issue `as if it were here for review in the regular course.'" Id.,
The defendant was tried in January, 2009, well before the Court decided the McDonald case on June 28, 2010, declaring that the Second Amendment is applicable to the States. McDonald, supra at 3050. Significantly, prior to McDonald, the Court in Heller had not overruled its prior precedent that the Second Amendment applied only to the Federal government. Heller, supra at 620 n.23. This pre-McDonald law, not the law of various circuit courts of the United States Court of Appeals or State courts, was the law to which the defendant was bound at the time of his trial. See Commonwealth v. Runyan, 456 Mass. 230, 234 (2010), and cases cited. Because the Second Amendment issue now presented by the defendant was not available to him until after McDonald was decided, which was long after his trial, we conclude that his failure to raise the issue during his trial does not preclude him from raising it here.
c. The defendant's firearm convictions and relevant statutory provisions. (i) Unlawful possession of a firearm. General Laws c. 269, § 10 (h) (1), makes it an offense to own or to possess a firearm, see note 3, supra, in one's home or place of business without obtaining an FID card pursuant to G. L. c. 140, § 129C. See Commonwealth v. Belding, 42 Mass.App.Ct. 435, 436-437 (1997) (firearm may be legally kept in home or place of residence if possessor has FID card). Under G. L. c. 140, § 129C, an FID card is required of every person, not exempt,
(ii) Unlawful carrying of a firearm. General Laws c. 269, § 10 (a), makes it an offense to "knowingly" possess a firearm outside of one's residence or place of business without also having a license to carry a firearm that has been issued under the licensing provisions of G. L. c. 140, § 131.
d. Constitutional challenges. Although the defendant argues that G. L. c. 269, § 10, and G. L. c. 140, § 131, violate both the Second Amendment and the equal protection guarantees of the Federal and State Constitutions, he contends that the violations occur in the same manner, namely, based on the fact that the statutes allegedly prohibit persons between eighteen and twenty years of age "from having ordinary firearms even in the home." Thus, he claims, the statutes unlawfully deny persons of this age group "from obtaining the same means of self-protection
e. Second Amendment challenges. We note initially that the defendant overlooks that the right secured by the Second Amendment is not unlimited. Both Heller and McDonald make that point clear. See McDonald, supra at 3047; Heller, supra at 626. The Court also emphasized in those decisions that the Second Amendment does not ban all regulation of firearms. See McDonald, supra; Heller, supra at 626-627. Rather, the Court only went so far as to say that the Second Amendment right to keep and bear arms was infringed on when legislation effectuated a total ban of handgun possession, or prevented the use of an operable firearm, in the home. Heller, supra at 629-630.
(i) Unlawful possession of a firearm in violation of G. L. c. 269, § 10 (h) (1). Under G. L. c. 140, § 129B (1) (v), only individuals under the age of fifteen are prohibited from obtaining an FID card. Significantly, the defendant does not contend that he ever attempted to obtain an FID card. Cf. Heller, supra at 575 (Heller had applied for and was denied "registration certificate" to possess handgun in his home). The defendant, thus, has not demonstrated that a denial of the issuance of an FID card would have been rendered. Had he been denied an FID card, his recourse is set forth in G. L. c. 140, § 129B (5) ("Any applicant ... aggrieved by a denial ... of [an FID card] ... may ... [ninety] days after receipt of notice of such denial ... file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for ... such card"). Instead of applying for an FID card, the defendant chose to violate the law. In these
(ii) Unlawful carrying of a firearm in violation of G. L. c. 269, § 10 (a). With respect to his convictions of unlawfully carrying a loaded firearm, the defendant correctly points out that the licensing scheme, namely the age disqualification in G. L. c. 140, § 131 (d) (iv), barring the issuance of a § 131 license to carry to an applicant who "at the time of the application [is] less than [twenty-one] years of age," prohibits young adults between eighteen and twenty years of age from obtaining a § 131 license to carry a firearm. However, as was the case with an FID card, the defendant does not contend that he attempted to obtain a § 131 license to carry. Cf. Heller, supra. As a consequence, the defendant has not demonstrated that a denial of the issuance of a § 131 license to him would have been rendered on account of his age alone. We add that under the licensing scheme, had the defendant been denied a § 131 license to carry (for whatever reason), he could have appealed that decision pursuant to the provisions of the statutory licensing scheme. See G. L. c. 140, § 131 (f) ("Any applicant ... aggrieved by a denial ... of a license ... may, within either [ninety] days after receiving notice of such denial ... file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license"). He chose instead (again) to violate the law. In these circumstances, we conclude that the defendant may not challenge his convictions under G. L. c. 269, § 10 (a). See Williams v. State, supra (defendant could not challenge handgun statute where he had not obtained, or even applied for, handgun permit).
(iii) Equal protection. Because the defendant never applied for an FID card or a § 131 license to carry (and was not consequently denied based solely on his age), we need not consider his claim that these provisions violate his Federal and State equal protection rights on account of effecting an age disqualification. We note, however, that Heller stands for the proposition
5. Conclusion. We affirm the denial of the defendant's motion to suppress and affirm his convictions.
So ordered.