COMMONWEALTH vs. JAMAL MARTIN.

KAFKER, J. Obviously false answers and nervous behavior by the defendant, Jamal Martin, during a brief street encounter with police led an officer to ask if he had any weapons. When the defendant failed to answer, the officer attempted to pat frisk him. The defendant pushed the officer's hands away but the officer continued with the frisk and discovered a loaded handgun. The defendant was convicted in a jury-waived trial of unlawful possession of a firearm in violation of G. L. c. 269, § 10(a); possession of a loaded firearm in violation of G. L. c. 269, § 10(n); and assault and battery on a police officer in violation of G. L. c. 265, § 13D. [Note 1] On appeal, he challenges his convictions on the ground that the motion judge improperly denied his motion to suppress evidence that he claims was the fruit of an illegal patfrisk. He also contends that the trial judge (who was not the motion judge) erred by admitting ballistics certificates at trial and excluding exculpatory evidence to rebut them. For the reasons set forth below, we affirm the defendant's convictions.

1. Motion to suppress. The motion judge made the following relevant findings of fact. On October 8, 2006, around 10:30 A.M., Boston police Officer Ismael Henriquez and his partner were patrolling the Woodrow Avenue area of the Dorchester section of Boston, a high crime area where Officer Henriquez had previously participated in drug and firearm arrests. The officers, who were wearing plain clothes and driving an unmarked car, were attempting to execute a warrant for the arrest of a

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juvenile who lived in the neighborhood. In the process, they saw a young man, the defendant, wearing a sweatshirt with a hood pulled up around his face. The defendant was walking toward Woodrow Avenue. While they could not see his face, the officers thought that the defendant might be the juvenile they were looking for.

They made a U-turn and drove next to the defendant, who ignored them. At this point, the officers still could not see his face. They rolled down the window, identified themselves as police officers, and asked the defendant his name. After some hesitation he replied, "Jamal Daly," which was not the name of the juvenile they were seeking. Also, the defendant was taller and stockier than that juvenile. [Note 2] The officers asked the defendant for his birth date. He told them it was "September, 1987." They then asked him how old he was and he replied, "Seventeen." Because the age and date did not match, [Note 3] the officers believed the defendant was lying about at least one of his answers.

At that point, Officer Henriquez stepped out of the vehicle and approached the defendant while his partner remained in the car. The defendant was nervous and took a few steps backward. Officer Henriquez could now see the defendant's face and knew he was not the wanted juvenile. The officer then asked the defendant if he had any weapons. When the defendant did not answer, Officer Henriquez attempted to pat frisk him. [Note 4] The defendant pushed the officer's hands away. Officer Henriquez told the defendant to calm down and continued with the frisk, during which he felt a hard object that turned out to be a loaded gun. Officer Henriquez handcuffed the defendant and arrested him. While booking him, the police allowed the defendant to make a telephone call, during which they overheard him say that he had "just been locked up for the gun I found." Additional facts from the record will be set forth as necessary.

The defendant argues on appeal that the judge improperly

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denied his motion to suppress evidence that he claims was the fruit of an illegal patfrisk. Prior to trial, the defendant made a motion to suppress the gun and bullets seized by the police and the statement he made during booking. The defendant argued that the police had no constitutional basis to search him. After an evidentiary hearing on December 11, 2006, a Boston Municipal Court judge denied the motion. The judge determined that the police had no constitutional basis to search the defendant prior to the defendant's pushing Officer Henriquez's hands away, but concluded that the push "provided probable cause to arrest the defendant for the crime of assault and battery." The judge observed that "[i]f suspects were legally permitted to resist searches or arrests they believed illegal, chaos and violence would supplant the rule of law." The judge further observed that, once there is probable cause to arrest, the police "may search a suspect for weapons or for evidence of the crime for which the arrest is made."

In reviewing a motion to suppress, the judge's findings of fact are "binding in the absence of clear error." Commonwealth v. Alvarado, 420 Mass. 542 , 544 (1995). However, we "independently review[] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Gentile, 437 Mass. 569 , 573 (2002), quoting from Commonwealth v. Eckert, 431 Mass. 591 , 593 (2000). While we affirm the judge's ruling, we do so on different grounds. [Note 5] See Commonwealth v. Va Meng Joe, 425 Mass. 99 , 102 (1997)

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("An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings").

Based on the judge's factual findings we conclude that the defendant was not seized until the officer attempted the patfrisk. At that point the officer had a legitimate reason for being in the immediate proximity of the defendant and a reasonable belief that the defendant was armed and dangerous. Therefore, the motion to suppress the gun and ammunition found pursuant to the patfrisk was properly denied.

"A person is seized by the police only when, in light of all of the attending circumstances, a reasonable person in that situation would not feel free to leave." Commonwealth v. DePeiza, 449 Mass. 367 , 369 (2007). In the instant case, the officers approached in an unmarked vehicle, without activating blue lights or sirens. Contrast Commonwealth v. Smigliano, 427 Mass. 490 ,

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491-492 (1998) ("a reasonable person, on the activation of a police car's blue lights, would believe that he or she is not free to leave"). While there were two officers present, only Officer Henriquez stepped out of the vehicle and he did not obstruct the defendant's movement. Compare Commonwealth v. DePeiza, 449 Mass. at 370 (no seizure even where two officers stepped out of the car and stood on each side of the defendant). Also, neither officer ordered the defendant to stop or to answer the questions he posed. See ibid. (relying in part on the fact that the officers did not order the defendant to stop or to answer their questions in concluding there was no seizure). Contrast Commonwealth v. Barros, 435 Mass. 171 , 172, 176 (2001) (defendant was seized when an officer approached the defendant after he ignored a request to talk and then said, "Hey you. I wanna talk to you. Come here"). Nor did the officers draw their weapons or touch the defendant prior to the patfrisk. See Commonwealth v. Pimentel, 27 Mass. App. Ct. 557 , 560 (1989) (explaining that "the display of a weapon by an officer [and] some physical touching of the person of the citizen" are examples of additional circumstances that support a finding of a seizure).

In this context, the questions that followed the officers' approach regarding name, age, and date of birth did not constitute a seizure. See Commonwealth v. Thinh Van Cao, 419 Mass. 383 , 388, cert. denied, 515 U.S. 1146 (1995) (no seizure where an officer approached the defendant in a public parking lot and asked questions about his identity); Commonwealth v. DePeiza, 449 Mass. at 370 (no seizure when officers asked for identification and held it during a "brief conversation"). The Supreme Judicial Court has recognized that "the police do not effect a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe he was not free to turn his back on his interrogator and walk away." Commonwealth v. Fraser, 410 Mass. 541 , 544 (1991). See Commonwealth v. Murdough, 428 Mass. 760 , 763 (1999) ("officers may make inquiry of anyone they wish . . . so long as they do not implicitly or explicitly assert that the person inquired of is not free to ignore their inquiries").

Although more significant, the additional question whether the defendant had a weapon is likewise not enough in these

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circumstances to seize the defendant. In Commonwealth v. Fletcher, 52 Mass. App. Ct. 166 , 170 (2001), after observing "three men who were engaging in the disorderly and unorthodox conduct of pounding on the side of a stopped bus in a public transit station crowded with people during the evening rush hour commute," an officer called the men over to talk to him, and as they approached he asked them if they had any weapons. When they did not answer, he pat frisked them. Id. at 167. In that case, we concluded that "stopping and stepping out of a cruiser that was properly patrolling a public transit station, calling over to the men, approaching them, and asking about a weapon . . . did not constitute a stop or seizure." [Note 6] Id. at 170. See United States v. Lockett, 406 F.3d 207, 209, 211 (3d Cir. 2005) (no seizure where officers told the defendant they were "looking for contraband including narcotics, large sums of money, guns, and other weapons [and] asked [him] if he had any of these items in his possession" [emphasis supplied]).

The decision to pat frisk a defendant, however, transforms the encounter. At that point, there must be at a minimum "some legitimate basis for the officer being in immediate proximity to the person," and the officer must reasonably believe that the individual is armed and dangerous. Commonwealth v. Fraser, 410 Mass. at 544 n.4. See Commonwealth v. Isaiah I., 450 Mass. 818 , 824 (2008); Commonwealth v. Knowles, 451 Mass. 91 , 97 (2008).

We conclude that Officer Henriquez had a legitimate reason for being in the immediate proximity of the defendant because the officer was attempting to apprehend a wanted juvenile who lived nearby, and he stopped the defendant to see if he was that individual. See Commonwealth v. Fraser, supra at 545 n.4 (officer was legitimately in the immediate proximity of the defendant when he came into contact with him while investigating a report of an armed man at that location). Although the officer had realized that the defendant was not the juvenile immediately before he asked the question about weapons, the defendant had in the meantime given the officer inconsistent answers and behaved nervously.

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The only issue that remains is whether Officer Henriquez had a reasonable belief that the defendant was armed and dangerous after the defendant did not respond to the question about weapons. We consider this a close question, but conclude that the officer did have a reasonable belief in these circumstances. The Supreme Judicial Court has observed that "it does not take much for a police officer to establish a reasonable basis to justify . . . [a] search based on safety concerns." Commonwealth v. Gonsalves, 429 Mass. 658 , 664 (1999). Also, "in applying hindsight to an officer's actions, an appellate court is mindful that, as shown by many tragic endings to threshold police inquiries, 'the answer might be a bullet.' " Commonwealth v. Rivera, 67 Mass. App. Ct. 362 , 365 (2006), quoting from Commonwealth v. Silva, 366 Mass. 402 , 407 (1974). See Terry v. Ohio, 392 U.S. 1, 33 (1968).

The combination of the following four factors produced the necessary reasonable belief that the defendant was armed and dangerous. [Note 7] See Commonwealth v. Fraser, 410 Mass. at 545 ("a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief"). First, the officers approached the defendant in a high-crime area where Officer Henriquez had previously participated in firearm arrests. See ibid. Second, the defendant hesitated before telling the officers his name and appeared nervous when Officer Henriquez stepped out of the car and approached him. Compare Commonwealth v. DePeiza, 449 Mass. at 371 (nervous behavior is a factor that can contribute to a reasonable belief that an individual is "committing the crime of carrying an illegal firearm"). Third, the age and date of birth that the defendant gave the officers were two years off, thereby demonstrating the defendant was lying to the officers. See Commonwealth v. Narcisse, ante 406, 410 (2008) (defendant's statement that he was from the town where a murder had occurred the previous night, together with his "apparently false statement that he was coming from 'the store,' " raised the officer's suspicion).

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Fourth, the defendant's silence in response to Officer Henriquez's asking him if he had any weapons contributed to the officer's reasonable belief that the defendant was armed and dangerous. The ambiguity left by the defendant's silence in response to this question, particularly when he had answered the previous questions, may be considered a factor by the police in determining whether the defendant is in fact armed and dangerous. [Note 8] See Commonwealth v. Knowles, 451 Mass. at 100 ("If the officer had asked rather than ordered [the defendant] to step away from the area to speak to him about the matter, and if [the defendant] had declined to do so, that fact would have legitimately heightened the officer's concern that [the defendant] posed a danger to his safety"). See also 2 LaFave, Search and Seizure § 3.6(f), at 364 (4th ed. 2004) ("the better view is that refusal to answer is one factor which an officer may consider, together with the evidence that gave rise to his prior suspicion, in determining whether there are grounds for an arrest"). Contrast Commonwealth v. Barros, 435 Mass. at 178 (defendant's "breaking eye contact with the officer and his refusing to answer the officer's initial questions . . . cannot provide reasonable suspicion . . . [as] [i]t was the defendant's right to ignore the officer").

In sum, in these circumstances, the patfrisk was justified.

2. Admission of the notarized ballistics certificates. The defendant next claims that the trial judge erred by admitting the notarized ballistics certificates in evidence. At trial, the Commonwealth offered the firearm and ammunition certificates as exhibits. The certificates stated that, in the ballistics expert's opinion, the weapon and the bullets found on the defendant met the statutory definitions of "firearm" and "ammunition." [Note 9] Both of these certificates were executed and notarized in accordance with the provisions of G. L. c. 140, § 121A. The defendant objected to the admission of this evidence because the copies

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that the Commonwealth had provided to him during discovery were not notarized. [Note 10] The defendant, however, did not mark the discovery copies for identification or offer them in evidence.

On appeal, the defendant argues that the certificates should have been excluded because the Commonwealth failed to provide him with notarized copies during discovery and because the unnotarized copies he did receive during discovery called into question the authenticity of the certificates admitted at trial. [Note 11] We conclude that the judge did not abuse her discretion in admitting the notarized certificates.

The ballistics certificates entered in evidence at trial were properly attested to and were therefore correctly admitted by the judge. To whatever extent the unnotarized discovery copies may have undermined the authenticity of these certificates, any deficiency went to the weight of the evidence, not its admissibility. Cf. Commonwealth v. Westerman, 414 Mass. 688 , 700 (1993) (concluding that "any procedural or administrative errors [in a drug analysis certificate] affect only the weight of the evidence" and not its admissibility). Furthermore, we agree with the Commonwealth that it disclosed the substance of the certificates to the defendant in a timely manner and that the delay in providing the notarized copies had no adverse consequences on the defendant's ability to prepare his case; the defendant does not argue that there is any substantive difference between the notarized and unnotarized certificates, nor do we observe any such difference. See Commonwealth v. Emerson, 430 Mass. 378 , 380-381 (1999), cert. denied, 529 U.S. 1030 (2000), quoting from Commonwealth

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v. Baldwin, 385 Mass. 165 , 175 (1982) ("Even where there has been insufficient disclosure, we look to see 'whether, given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed' ").

3. The ballistics case notes. The defendant's final claim of error concerns the ballistician's case notes that accompanied the ballistics certificates. During the defendant's cross-examination of Officer Henriquez, the following exchange took place:

Q.: "Were you there present when [the firearm] was tested?"

A.: "No, I was not."

Q.: "Did you read the ballistician's report?" [Note 12]

A.: "Yes, sir."

Q.: "The way that gun was found that day it could not be operated, correct; it could not fire those bullets, correct?"

A.: "If that's what it says --"

PROSECUTOR: "Objection."

THE COURT: "Overruled."

Q.: "The way the gun was found that day it couldn't be fired according to the ballistician's report, correct?"

PROSECUTOR: "Objection. It doesn't say that."

THE COURT: "No. He can testify as to what he knows. Does it say that or not, or do you know?"

A.: "Well, there's another certification in there."

Q.: "I'm not talking about the certification. I'm talking about his written report?"

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A.: "Correct."

DEFENSE COUNSEL: "I have no further questions."

The defendant, however, did not seek to admit the case notes in evidence; nor did he present any expert witnesses on the question.

During the defendant's closing argument, counsel argued, "We know from the police officer's testimony that the ballistician himself admitted that the gun was not fireable in the condition it was found on the defendant." At that point, the judge interrupted him because the judge did not believe the police officer had given this testimony. The judge also correctly pointed out that the case notes were not in evidence.

On appeal, the defendant argues that the case notes should have been admitted under the doctrine of curative admissibility. "The curative admissibility doctrine allows a party harmed by incompetent evidence to rebut that evidence . . . if the original evidence created significant prejudice." Commonwealth v. Ruffen, 399 Mass. 811 , 813-814 (1987). The defendant claims that the notarized ballistics certificates were incompetent evidence, and therefore, he should have been allowed to rebut them by entering the ballistician's case notes, which he claims contain exculpatory evidence. Because, as discussed supra, the ballistics certificates were competent and properly admitted in evidence, the curative admissibility doctrine does not apply. [Note 13] Moreover, even if the doctrine had applied, the defendant did not properly

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offer the notes into evidence. [Note 14] The trial judge could not consider something that was never properly before her. Commonwealth v. O'Brien, 423 Mass. 841 , 848-849 (1996).

Judgments affirmed.

BROWN, J. (dissenting). I respectfully dissent, as there is, in my view, an unclear line between Commonwealth v. Barros, 435 Mass. 171 (2001), and Commonwealth v. DePeiza, 449 Mass. 367 (2007), and, in any event, the factual circumstances in the case before us exceed even the dictates of the DePeiza decision.

In the factual scenario here we have a young man walking down the street at 10:30 in the morning, who is nervous upon being questioned by the police. His inconsistent answers were not germane to any crime being investigated, nor were there any visible signs that he was carrying a weapon, such as an unusually heavy pocket, or an odd gait. He did not make any furtive movement. Only after the police had ascertained that he was not the person they were seeking to apprehend was he asked whether he had a gun. [Note Dissent-1] Thus, even under the teachings of Commonwealth v. Fraser, 410 Mass. 541 (1991); Commonwealth v. DePeiza, supra; Commonwealth v. Fletcher, 52 Mass. App. Ct. 166 (2001); Commonwealth v. Narcisse, ante 406 (2008); and Commonwealth v. Jackson, ante 411 (2008), there simply was not enough here to question the defendant further after the police realized he was not the person they were looking for. This is a case where "the police . . . turn[ed] a hunch into a reasonable suspicion by inducing the conduct justifying the suspicion." Commonwealth v. Barros, 435 Mass. at 178.

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I am compelled to add an admonition about the current state of the law. The resolution of this category of cases apparently turns on the question whether the citizen had a gun. That may not be the only factor, but it certainly seems to be the controlling one. If it is not, we should pat frisk all travelers walking (or stopping) on the street, or at any intersection in a so-called high crime area (which I suspect is an area situated in most cities and towns). We already know even under Terry v. Ohio, 392 U.S. 1 (1968), that "running" and "straight-arm" walking are sufficiently indicative of reasonably suspicious behavior to justify a patfrisk. See Commonwealth v. DePeiza, 66 Mass. App. Ct. 398 , 408-409 (2006) (Brown, J., concurring), S.C., 449 Mass. 367 (2007). In sum, we have here another example of the troubling tension that exists between the responses of law enforcement personnel to the dangers of illegal weapons on the streets of our cities and towns and respect for and adherence to the commands of the Fourth Amendment to the United States Constitution. My hope, however, is that the Fourth Amendment does not become "an inconvenient truth."