Commonwealth v. Silvelo

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SJC-12866

COMMONWEALTH vs. DERON N. SILVELO.

Essex. March 2, 2020. - October 14, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1

Firearms. Motor Vehicle, Firearms. Constitutional Law, Search
and seizure, Probable cause. Search and Seizure, Motor
vehicle, Probable cause. Probable Cause. Practice,
Criminal, Motion to suppress, Instructions to jury,
Argument by prosecutor.

Complaints received and sworn to in the Lawrence Division
of the District Court Department on March 17, 2014, and December
4, 2015.

A pretrial motion to suppress evidence was heard by Michael
A. Uhlarik, J., and a motion for reconsideration was considered
by him; and the case was tried before Holly V. Broadbent, J.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Michelle A. Dame for the defendant.
Catherine P. Sullivan, Assistant District Attorney, for the
Commonwealth.

1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
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LOWY, J. The defendant was convicted by a jury of carrying

a firearm without a license and possessing a loaded firearm.2

His trial took place before our decision in Commonwealth v.

Brown, 479 Mass. 600, 601 (2018), in which we concluded that in

order to convict a defendant of unlawful possession of a loaded

firearm, G. L. c. 269, § 10 (n), the Commonwealth has to prove

that the defendant knew that the firearm was loaded. Thus, the

judge did not instruct the jury on this element of the crime.

The Appeals Court affirmed the convictions, and we granted the

defendant's application for further appellate review. See

Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 86-87 (2019).

The defendant contends that (1) the motion judge erred in

denying the defendant's motion to suppress the firearm;

(2) there was insufficient evidence to sustain the conviction of

possession of a loaded firearm; (3) the failure to instruct that

jury that the defendant had to know that the firearm was loaded

created a substantial risk of a miscarriage of justice on that

2 On the first day of trial, the Commonwealth dismissed the
indictment for possession of ammunition without an FID card.
The defendant also faced a civil infraction for failing to wear
a seat belt, pursuant to G. L. c. 90, § 13A, for which the trial
judge found the defendant responsible; the charge was filed.

The judge sentenced the defendant to eighteen months
imprisonment on the charge of carrying a firearm without a
license, and to two years of probation on the charge of carrying
a loaded firearm without a license, to run from and after the
completion of his prison sentence.
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charge; and (4) the prosecutor's closing arguments contained

misconduct that created a substantial risk of a miscarriage of

justice.

We affirm the motion judge's denial of the motion to

suppress. We also determine that the evidence was so

overwhelming that we have no serious doubt that a rational jury

could have concluded that the defendant knew that the revolver

he possessed was loaded had the judge properly instructed them,

and therefore, we affirm the conviction under G. L. c. 269,

§ 10 (n). Commonwealth v. Lutskov, 480 Mass. 575, 581 (2018).

1. Background. At around 11:15 P.M. on March 16, 2014, a

State police trooper initiated a vehicle stop on a busy

interstate highway due to an invalid inspection status. Once

the car stopped, the trooper approached from the passenger's

side to avoid traffic. While approaching, he observed at least

four people in the back seat, including children or infants, and

he noticed the defendant in the front passenger's seat

attempting to fasten a seat belt. Consequently, the trooper

requested identification not only from the driver, but also from

the defendant.

As the defendant reached for his identification, the

trooper observed a black object, which he believed to be a

weapon because of its size and color, fall out of the

defendant's pocket between his seat and the center console. The
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trooper returned to his cruiser and discovered that the

defendant had outstanding warrants. Rather than act by himself

on that information, the trooper requested backup. When backup

arrived, the trooper arrested the defendant on the warrants,

handcuffed him, and placed him in the cruiser. The trooper

immediately searched the front passenger's seat area of the

stopped car and found a revolver. He flipped open the revolver

portion and saw four of the chamber's five openings filled with

ammunition.

2. Discussion. a. Motion to suppress. The defendant

appeals from the order denying his motion to suppress the

firearm evidence as fruits of an unconstitutional automobile

search.3 "In reviewing a ruling 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" (quotation and citation omitted).

Commonwealth v. Perkins, 465 Mass. 600, 601 (2013), quoting

Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

At the hearing on the motion, the trooper testified on

direct examination that he saw a dark object he believed to be a

firearm fall from the defendant's pocket. On cross-examination,

the trooper indicated that he was not one hundred percent sure

3 The defendant's motion for reconsideration also was
denied.
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that it was a firearm. He testified that he saw "[a] dark

object that could resemble a weapon." The motion judge credited

the trooper's testimony and found that the trooper observed the

"defendant remove[] what appeared to be a gun from his pants

pocket.". The motion judge determined that the trooper's

concern for his own safety reasonably justified the protective

sweep of a vehicle pursuant to Terry v. Ohio, 392 U.S. 1, 30

(1968).

Under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, warrantless searches are presumptively "unreasonable

. . . subject only to a few specifically established and well-

delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338

(2009), quoting Katz v. United States, 389 U.S. 347, 357 (1967).

See also Perkins, 465 Mass. at 603. Because the trooper had no

search warrant, the Commonwealth bears the burden of

establishing that the stop and frisk "exception[] to the warrant

requirement" applies.4 Perkins, supra at 603.

4 "In 'stop and frisk' cases, there is a two-step analysis:
whether the initiation of the investigation by the police was
permissible in the circumstances and whether the scope of the
search was justified." Commonwealth v. Torres, 433 Mass. 669,
672 (2001). In his motion to suppress, the defendant argued
that the first prong was not justified because the stop of the
vehicle, the request for the defendant's identification, and his
arrest were unconstitutional. He is no longer pursuing those
contentions.
 6

The "stop and frisk" exception to the warrant requirement

permits a police officer without probable cause both to stop a

vehicle, and to "conduct a limited [vehicle] search for weapons

if . . . 'reasonably prudent'" people in the officer's position

would justifiably fear for their safety or that of other

persons. Commonwealth v. Daniel, 464 Mass. 746, 752 (2013),

quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). See

Commonwealth v. Manha, 479 Mass. 44, 49 (2018) (Terry-type

protective sweep may extend to limited search of automobile).

The officer's fear must be grounded in "specific, articulable

facts and reasonable inferences drawn therefrom" (citation

omitted). Commonwealth v. Edwards, 476 Mass. 341, 345 (2017).

To determine reasonableness, we "balanc[e] the need to search

. . . against the invasion which the search . . . entails"

(citation omitted). Silva, 366 Mass. at 405.

Warrantless searches of vehicles are justified where an

officer would reasonably fear that the defendant may possess a

weapon or that there is a weapon in the vehicle. See Daniel,

464 Mass. at 752. Even where the officers ask the defendant to

get out of the vehicle, they may reasonably fear for their

safety because any other occupant may access a weapon left

behind by the defendant, or the defendant may access a weapon

left behind upon returning to the vehicle. See Commonwealth v.

Santiago, 53 Mass. App. Ct. 567, 571 (2002) (officer "not
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required to risk becoming a victim upon the suspect's reentry

into the vehicle").

Although the trooper here had already arrested the

defendant prior to the search, and the defendant could not

return to the vehicle to access a weapon, the evidence

nevertheless supports the motion judge's conclusion that a

reasonable officer would continue to have safety concerns under

the circumstances. Contrast Edwards, 476 Mass. at 349. The

trooper observed a weapon fall from the defendant's pocket when

he first approached the vehicle. See Commonwealth v. Robbins,

407 Mass. 147, 152 (1990) (protective search of automobile

justified because police saw wooden object consistent with

weapon handle). Given that other adults remained in the vehicle

after the trooper arrested the defendant, the trooper's concern

that the revolver "could [still] be used against" him was

reasonable. Id. The search was therefore constitutionally

permissible because a "reasonably prudent" trooper would not

only have personal safety concerns, but also would appreciate

that the other passengers might retrieve the weapon and harm the

trooper, themselves, or others. Daniel, 464 Mass. at 752,

quoting Silva, 366 Mass. at 406. See Commonwealth v. Graham, 78

Mass. App. Ct. 127, 129 (2010).5

5 We note that other theories might justify the search of
the defendant's vehicle, such as a search incident to arrest. A
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b. Erroneous jury instruction. Because our decision in

Brown relied upon statutory interpretation, we apply its rule

retroactively.6 See Commonwealth v. Paul, 96 Mass. App. Ct. 263,

265-266 (2019). Therefore, the trial judge's jury instruction

omitted an essential element required to convict a defendant of

violating G. L. c. 269, § 10 (n): whether the defendant knew

the gun he possessed was loaded. Because the defendant did not

object to the instruction, we determine whether the error

created a substantial risk of a miscarriage of justice, which

requires us to order a new trial if "we have a serious doubt

whether the result of the trial might have been different had

the error not been made" (quotations omitted). Commonwealth v.

Sherman, 481 Mass. 464, 475-476 (2019).7

search of a vehicle is constitutional following a defendant's
arrest, either to seize evidence of the offense for which the
defendant was arrested or to remove weapons that the defendant
might use to resist arrest or to escape. See G. L. c. 276, § 1.
See also Commonwealth v. Perkins, 465 Mass. 600, 605 (2013),
quoting Arizona v. Gant, 556 U.S. 332, 344 (2009). The trooper
here had secured the defendant in the police cruiser at the time
of the search, so we do not reach the issue whether the
officer's justification to search for weapons incident to arrest
under G. L. c. 276, § 1, dissipated when he waited for backup
before making the arrest.

6 The jury returned the guilty verdicts in the defendant's
case more than one year before we released Brown.

7 We have noted multiple times that "this standard is
particularly well suited to a situation, such as here, where the
elements of a crime are erroneously stated in the jury charge."
Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
72 (2005). See Commonwealth v. Amirault, 424 Mass. 618, 647
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To assess whether a jury instruction omitting an essential

element of a crime created a substantial risk of a miscarriage

of justice, we evaluate the evidence as a whole to determine

whether the evidence was "so overwhelming" that "there is no

likelihood that the omitted instruction materially influenced

the jury's verdict[]."8 Lutskov, 480 Mass. at 581.9 See

Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986) ("no harm

accrues to a defendant if an error does not relate to an issue

actively contested at trial"). Cf. Commonwealth v. Gilbert, 447

Mass. 161, 173-174 (2006) (no substantial risk of miscarriage of

justice where evidence required jury to find element omitted

from instruction).

n.21 (1997) ("This standard is well suited to these cases
because, when the elements of a crime are incorrectly stated,
there is a substantial risk that a person has been convicted for
a course of conduct that is not criminal at all.").

8 Because we conclude that the Commonwealth presented
evidence "so overwhelming" that "there was no likelihood that
the omitted instruction materially influenced the jury's
verdict[]," Commonwealth v. Lutskov, 480 Mass. 575, 581 (2018),
we conclude that the Commonwealth necessarily presented
sufficient evidence for a rational jury to convict the defendant
of possessing a loaded firearm.

9 We recognize that this formulation diverges from Azar, 435
Mass. at 688, under which we analyzed whether the "evidence
required the jury to [have found]" or to have "ineluctably
inferred" that the Commonwealth carried its burden of proving
the omitted element beyond a reasonable doubt. We do not intend
this semantic difference in language to change the stringency of
the standard announced in Azar with this formulation.
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Without direct evidence that the defendant knew the gun was

loaded, and with almost no discussion of the question at the

hearing on the motion to suppress or at trial, we evaluate the

circumstantial evidence, see Brown, 479 Mass. at 608, to

determine whether the evidence was "so overwhelming" that we

have no serious doubt that a rational jury could have concluded

the defendant knew the revolver he possessed was loaded.

Lutskov, 480 Mass. at 581. Although the standard is a high one,

we do not dispense with common sense when evaluating the

evidence. See Commonwealth v. Russell, 439 Mass. 340, 351

(2003) ("As the terminology implies, a 'substantial risk of a

miscarriage of justice' refers to a risk that has some genuine

substance to it. That standard does not encompass an abstract,

theoretical possibility of a miscarriage of justice, utterly

divorced from the case as it was tried").

The Commonwealth's case was strong. The principal evidence

presented by the Commonwealth was that the defendant had a

loaded revolver in his pants pocket, which the trooper saw fall

to the floor of the car. Moreover, the Commonwealth entered the

revolver in evidence, for the jury to view during deliberations.

The jury therefore would have observed that the ammunition would

have been clearly visible in the chamber given the revolver's

configuration. The revolver could hold five bullets in the

cylinder, and it was loaded with four bullets when the trooper
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seized it. Even if one of the bullets was in the chamber, and

therefore not visible in the cylinder, at least three bullets in

the cylinder would have remained visible to the defendant. See

Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7 (2012)

(because "the firearm was a revolver located in a vehicle, a

rational jury could infer that those who possessed the firearm

knew that it was loaded with ammunition"). See also

Commonwealth v. Resende, 94 Mass. App. Ct. 194, 200 (2018) (jury

reasonably could have concluded that defendant would have

checked to see if firearm was loaded before he put it in his

waistband to infer defendant knew firearm loaded). But see

Commonwealth v. Grayson, 96 Mass. App. Ct. 748, 752-753 (2019)

(inference from waistband evidence alone insufficient).

Given that we had not decided Brown at the time of trial,

it is understandable that the defendant did not argue that the

Commonwealth failed to present any evidence that he knew the

revolver was loaded. The defendant's position at trial was that

he never possessed the firearm that the officer testified fell

out of the defendant's pocket. Considering the mandatory

minimum sentence the defendant was facing for carrying a

firearm,10 it is unlikely in the extreme that the defendant would

have challenged the Commonwealth's proof.

10The mandatory minimum for possessing a firearm without a
license is eighteen months. See G. L. c. 269, § 10 (a).
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Rather, the defendant argued that he did not know that the

revolver was in the vehicle because the previous owner of the

car, from whom the defendant's mother had purchased the car a

week before the arrest, must have left the revolver under the

passenger seat. However, the defendant's mother also testified

that she inspected the car closely before purchasing it and that

she kept it very clean. The jury credited the trooper's

testimony in finding that the defendant possessed the firearm.

It is therefore difficult to imagine a rational jury, using

their common sense, finding that the defendant carried the

revolver, but that he did not know it was loaded. The omitted

essential element of knowledge that the firearm was loaded did

not create a substantial risk of a miscarriage of justice. See

Lutskov, 480 Mass. at 581.

d. Prosecutor's closing arguments. Finally, the defendant

contends that errors in the prosecutor's closing argument, to

which the defendant did not object at trial, collectively

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). We

evaluate the closing arguments as a whole, in light of the

strength of the evidence presented at trial, to determine

whether we have a serious doubt that any discovered errors would

have led to a different outcome at trial. See Commonwealth v.

Cole, 473 Mass. 317, 333 (2015), overruled on another ground,
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Commonwealth v. Wardsworth, 482 Mass. 454 (2019). Although we

conclude that there was no error, following closely the reasons

stated in the Appeals Court decision, see Silvelo, 96 Mass. App.

Ct. at 91-93, we take this opportunity to remind prosecutors to

avoid improper vouching.

During closing, the prosecutor deployed the pronoun "we"

when arguing that the trooper acted properly in deescalating the

situation instead of immediately arresting the defendant upon

observing what the trooper presumed to be a gun fall from the

defendant's pocket. The prosecutor stated: "We don't know what

would have happened if [the trooper] would have removed [the

defendant] when [the trooper] first sees that firearm. We don't

know that. What we do know is what he saw, what he did, and

we're here as a result of it, on a deescalated situation." The

defendant alleges that by using the pronoun "we," the prosecutor

improperly aligned himself with the jury.

"A prosecutor's position is a delicate one. The prosecutor

must be free to argue that such a witness is credible, but may

not explicitly or implicitly vouch to the jury that he or she

knows that the witness's testimony is true." Commonwealth v.

Ciampa, 406 Mass. 257, 265 (1989). Improper vouching includes

suggestions that the prosecutor has personal knowledge of the

veracity of a witness's testimony or knowledge about the case

independent of the evidence before the jury. See id. See also
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Commonwealth v. Carney, 472 Mass. 252, 258 (2015). When it

comes to the use of a first person pronoun, "it is preferable

that counsel avoid arguing in a form that seeks to engage the

jury with him or her personally," but the "[m]ere[] us[e of] a

first person pronoun does not interject personal belief into a

statement" (quotations and citation omitted). Commonwealth v.

Jenkins, 458 Mass. 791, 797 (2011). We remind prosecutors that

arguments that suggest that the jury should be on the side of

the government, instead of being judges of the facts and

impartial arbiters of the application of the burden of proof,

interferes with the equality of all parties before the bar of

justice.

Notwithstanding our caution against the use of "we," we

conclude that the prosecutor here did not intend to align

himself with the jury or to vouch improperly for the trooper's

credibility. The prosecutor merely summarized what the trooper,

not the prosecutor, knew to be true, and responded to the

defendant's closing, which repeatedly questioned the trooper's

credibility because he did not react immediately to seeing what

he presumed to be a gun fall from the defendant's pocket. There

was no error.

3. Conclusion. For the foregoing reasons, we affirm the

defendant's convictions of carrying a firearm without a license

and of possessing a loaded firearm.
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So ordered.