Commonwealth v. Williams

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22-P-869 Appeals Court

COMMONWEALTH vs. CHARLES WILLIAMS.

No. 22-P-869.

Suffolk. December 5, 2023. – August 1, 2024.

Present: Green, C.J., Neyman, & Englander, JJ.

Homicide. Evidence, Firearm, Videotape. Firearms. Search and
Seizure, Search incident to lawful arrest. Constitutional
Law, Search and seizure, Equal protection of laws.
Practice, Criminal, Motion to suppress, Jury and jurors,
Challenge to jurors.

Indictments found and returned in the Superior Court
Department on November 8, 2017.

A pretrial motion to suppress evidence was heard by
Christine M. Roach, J., and the cases were tried before Janet L.
Sanders, J.

Richard P. Heartquist for the defendant.
Erin Knight, Assistant District Attorney, for the
Commonwealth.

ENGLANDER, J. The defendant appeals from his conviction by

a jury of murder in the second degree.1 His principal argument

1 The defendant was also convicted of various firearm
offenses and appeals from those convictions as well.
2

is that a key piece of evidence -- a firearm used during the

commission of the murder -- should have been suppressed pursuant

to the Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights. The police

found the firearm in question on the day they arrested the

defendant, over three months after the murder, in a backpack

that the defendant had been carrying immediately before he was

arrested. The defendant argues that because the backpack was

not on his person at the time of his arrest, and was not seized

or searched until after he had been handcuffed and removed from

the scene, the seizure and search cannot be justified as a

search incident to arrest, or on any other basis that would

provide an exception to the warrant requirement. For the

reasons that follow, we conclude that both the seizure and

search of the backpack and the seizure of the firearm were

lawful under Federal and Massachusetts law. We discern no merit

in the other arguments that the defendant raises, and

accordingly affirm the judgments.

Background. On the evening of July 15, 2017, Dennis Parham

was shot and killed at the Lenox Housing Development in the city

of Boston. The shooting was caught by surveillance cameras, and

there was at least one eyewitness, who was looking out the

window of a nearby home. Among other things, the surveillance

video showed a shooter pulling a gun from his person, firing
3

several shots, and returning it to his waistband. In what might

be described as a stroke of luck for the investigation, the

eyewitness performed independent research on the Internet and,

several days after the shooting, identified the defendant to the

Boston police as one of what he believed were two shooters whom

he had seen on the night of the murder.

More than three months later, on November 5, 2017, Boston

police officers went to arrest the defendant after he was

located at a home (believed to belong to the defendant's

girlfriend) in the Brighton section of Boston. The police

identified the defendant's car in front of the residence and

began surveillance. The police did not obtain any warrants in

connection with the planned arrest. Sometime that morning, the

police observed the defendant's car start up, remotely, on the

street in front of the defendant's girlfriend's house. The car

was legally parked. Shortly thereafter, the defendant left the

house and walked toward the car. He had a backpack on his

person. The police allowed him to enter the car, at which point

the defendant placed the backpack on the passenger seat. The

police then approached the car from all directions. One officer

approached the driver's side, and asked the defendant to step

out. Another, Officer Patrick Murphy, opened the passenger side

door, reached in, and turned off the car engine. The defendant

complied with the officers' order (leaving the backpack in the
4

car), and was taken to the rear of the car and handcuffed.

Shortly thereafter the defendant was placed in a police

transport and taken to the police station. Before leaving, the

defendant asked the police to leave his car with his girlfriend,

who was observing from an adjacent sidewalk.

Officer Murphy called his superior, Sergeant Detective

Michael Devane, who was at the police station, to ask him what

should be done with the defendant's car. Devane said that he

did not want the car impounded. The defendant had been driving

a different car on the day of the murder in July, as seen on the

surveillance videos. That car had been rented from Zipcar,

Inc.; it was not the same car that the police encountered

outside the defendant's girlfriend's home in November.

Murphy decided to give the car keys to the girlfriend.

Before he did so, however, Murphy learned from another officer

that the defendant had been wearing the backpack, now in the

car, when the defendant had exited the girlfriend's home.

Murphy called Devane a second time, this time asking

specifically about the backpack that the defendant had been

wearing. Devane told Murphy to bring the backpack to the

station. Before Murphy brought the backpack to the station,
5

however, he opened the backpack and moved around some items

inside. He observed the handle of a black handgun.2

After the handgun was brought to the station it was

examined by police experts. Ballistics from the gun matched

several .40 caliber casings recovered from the murder scene and

one of the defendant's fingerprints was found on the gun's

magazine.

The defendant filed a motion to suppress the gun, along

with several other motions to suppress. The essence of the

defendant's argument was that the backpack could not be seized

or searched without a warrant, and that the search could not be

justified as a search incident to arrest because the backpack

was not seized or searched until after the defendant had been

removed from the scene.

The judge held an evidentiary hearing, and denied the

motion as to the backpack and firearm. The judge first

concluded that the search of the backpack could not be justified

as a search incident to arrest. The judge also concluded,

however, that the seizure of the backpack was "reasonable,"

inasmuch as the backpack had been on the defendant's person

immediately prior to his arrest, and was then in the car that

2 The judge's findings from the suppression hearing indicate
that this search occurred approximately seven minutes after the
defendant had been arrested, and four minutes after the
defendant had been removed from the scene.
6

was going to be turned over to the girlfriend. And although the

judge found that Murphy's immediate search of the backpack was

not justified, the judge nevertheless held that the gun should

not be suppressed, because the lawfully seized backpack would

inevitably have been inventoried once it was secured at the

station.

The defendant was tried for murder over fourteen days in

August and September of 2021. On September 16, 2021, the jury

convicted the defendant of murder in the second degree and four

additional charges relating to carrying a loaded firearm without

a license. This appeal followed.

Discussion. 1. The motion to suppress the gun. The

principal issue before us is whether the firearm located in the

backpack must be suppressed under the Fourth Amendment to the

United States Constitution or art. 14 of the Massachusetts

Declaration of Rights. The search of the backpack was conducted

without a warrant, and accordingly, the search must be justified

under an exception to the warrant requirement. See Commonwealth

v. Ortiz, 487 Mass. 602, 606 (2021), quoting Commonwealth v.

Arias, 481 Mass. 604, 610 (2019). Here the judge ruled -- and

the Commonwealth continues to press on appeal -- that the

firearm would have been "inevitably discovered" pursuant to a

lawful inventory of the defendant's "possessions," which the

Commonwealth contends would have occurred when the backpack was
7

brought to the police station. Alternatively, the Commonwealth

argues that the search of the backpack was a lawful search

incident to arrest, citing in particular Commonwealth v.

Figueroa, 468 Mass. 204, 215-216 (2014).

We begin our analysis with "the basic rule that 'searches

conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the Fourth

Amendment -- 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). One of those well-delineated exceptions, however, is

the doctrine of search incident to arrest. In Gant, the United

States Supreme Court revisited the permissible scope of a search

incident to arrest where, as here, the defendant was seized and

arrested immediately after having been in an automobile. Gant,

supra at 338-344. The Supreme Court clarified that in such

circumstances a search of the car (and items in the car) could

be justified on either of two grounds: (1) as reasonably

necessary for officer safety, the passenger compartment could be

searched if the arrestee was "unsecured and within reaching

distance of the passenger compartment at the time of the

search," and (2) when it is "reasonable to believe evidence

relevant to the crime of arrest might be found in the vehicle"

(citation omitted). Id. at 343.
8

In this case, the warrantless search of the backpack

incident to the defendant's arrest was lawful under the second

of the above rationales -- it was a lawful search for evidence

relevant to the crime.3 Gant says that such a search is lawful

if it was "reasonable to believe" that relevant evidence "might

be found." Gant, 556 U.S. at 335. This court has equated the

"reasonable to believe" standard with "probable cause," and

suggested that Gant's second rationale is merely an application

of the well-recognized automobile exception to the warrant

requirement. See Commonwealth v. Starkweather, 79 Mass. App.

Ct. 791, 796-797 (2011).4 Under the automobile exception, where

3 It bears noting that had the police chosen to arrest the
defendant as he walked to the car, the backpack search would
have been a lawful search incident to arrest, as the backpack
was then on his person. See Commonwealth v. Phifer, 463 Mass.
790, 795-796 (2012), citing Commonwealth v. Madera, 402 Mass.
156, 159-161 (1988).

4 There is considerable uncertainty in the case law as to
whether Gant's "reasonable to believe" standard equates to
probable cause, to reasonable suspicion, or to some other
standard that also is less stringent than probable cause. See
United States v. Edwards, 769 F.3d 509, 514 (7th Cir. 2014)
("[t]he Court in Gant did not elaborate on the precise
relationship between the 'reasonable to believe' standard and
probable cause, but the Court's choice of phrasing suggests that
the former may be a less demanding standard"); United States v.
Polanco, 634 F.3d 39, 42-43 (1st Cir. 2011) ("the auto exception
requires probable cause. But the Gant evidentiary justification
only requires a 'reasonable basis.' These distinctions make a
difference" [citations omitted]); United States vs. Whitlock,
U.S. Dist. Ct., No. 2:20-cr-00017 (D. Vt. Apr. 16, 2021)
(collecting cases). We need not decide whether Gant establishes
a less stringent standard than probable cause because as set
forth below, the facts in this case establish probable cause.
9

an investigator has probable cause to believe that evidence

relevant to a crime is located in an automobile in a public

area, the investigator may search those areas of the automobile

to which probable cause extends without first obtaining a

warrant. See Commonwealth v. Davis, 481 Mass. 210, 220 (2019).

The rationale for this exception, also well-established, is

primarily exigency -- automobiles are mobile, and the

investigator may not have time to get a warrant before the

evidence has been moved. See Commonwealth v. Eggleston, 453

Mass. 554, 554 (2009), quoting Commonwealth v. Motta, 424 Mass.

117, 124 (1997). For this reason, the ability to search the

vehicle based on probable cause (and without a warrant)

"continues even after the arrestee is taken away from the

vehicle and is secured." Starkweather, supra at 797.5 Moreover,

5 The Commonwealth also relies on the officer safety
rationale, arguing that the backpack was within the defendant's
"lunge area" at the time he was arrested, citing Figueroa, 468
Mass. at 215-216. Gant appears to hold, however, that the scope
of a lawful search incident to arrest based on officer safety
concerns is judged as of the time of the search. See Gant, 556
U.S. at 343 (rationale for search incident to arrest exception
permits "police to search a vehicle incident to a recent
occupant's arrest only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of
the search" [emphasis added]). Here, the search did not occur
until the defendant had been removed from the area, so as of the
time of the search the backpack was not within the defendant's
reach.

As to the Commonwealth's inevitable discovery argument, the
difficulty is a factual one -- the defendant was brought to the
police station without the backpack; it was left behind in the
10

the lawful scope of the search "extends to all containers, open

or closed, found within." Commonwealth v. Bostock, 450 Mass.

616, 624 (2008), quoting Commonwealth v. Cast, 407 Mass. 891,

908 (1990).

Here the police investigators had probable cause to believe

the backpack the defendant had been carrying on his person might

contain evidence relevant to the Parham murder. Probable cause,

of course, "is 'not a high bar,'" Commonwealth v. Guastucci, 486

Mass. 22, 26 (2020), quoting District of Columbia v. Wesby, 583

U.S. 48, 57 (2018); it does not require a showing that evidence

more likely than not was in the backpack. Probable cause is

less than a preponderance; it is a "reasonable likelihood" that

evidence will be discovered. Commonwealth v. Murphy, 95 Mass.

App. Ct. 504, 509 (2019). And here the information known to the

investigators established such a reasonable likelihood.

To begin, it is not disputed that the police had probable

cause to arrest the defendant for Parham's murder. There was an

eyewitness who identified the defendant as the shooter, based on

a fairly detailed description that was reasonably consistent

with a surveillance video. As to the location of relevant

evidence of the crime, that same surveillance video showed that

car. It may be, as the judge ruled, that it was nevertheless
reasonable for the police to seize the backpack from the car, so
as to reunite it with the defendant as one of his possessions,
but for the reasons stated herein, we need not decide.
11

the defendant had a gun on his person, and returned it to his

person after the shooting. The firearms used in the murder had

not been found as of the defendant's arrest.6 And, no firearm

was found when the defendant was searched at the time of arrest

-- it was no longer on his person.

The above facts plainly would have established probable

cause to search a backpack the defendant was carrying if, for

example, the defendant had been arrested the night of the

shooting. If the murder weapon was not found on the defendant's

immediate person at that time, there was of course probable

cause to search a container he was carrying (as well as his car,

his home, and any other place he might reasonably have left the

gun). See Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 718-

719 (2012). The issue here, however, is whether the

investigators' information was too stale to establish probable

cause for a search when the investigators finally caught up with

the defendant three and one-half months later.

We hold that in the circumstances here, probable cause also

existed to search the backpack the defendant was carrying at the

time of his arrest. In evaluating staleness, a key question

courts address is whether the item sought is "durable," such

that the defendant is still likely to have the item at the time

6 Ballistics evidence identified shells from two different
firearms at the murder scene.
12

of the search. The Supreme Judicial Court addressed the

staleness inquiry most recently in Guastucci, 486 Mass. at 23,

in which the court held that where the police had information

that child pornography was located on a computer at a particular

home, that information was not too stale to establish probable

cause to search computers in the home seven months later.

In Guastucci, the court discussed the components of the

"highly fact-intensive" staleness inquiry in depth, beginning

its discussion with general staleness principles that apply in

all cases evaluating probable cause. Guastucci, 486 Mass. at

26-27.7 The question is whether the passage of time has caused

information to lose its significance for determining the

likelihood that evidence will be found, and the issue of "how

long is too long" defies the creation of a bright-line rule. In

Guastucci, the court identified two principal factors that

should be considered -- (1) "the nature of the criminal

activity," and (2) "the nature of the item to be seized." Id.

at 27. In discussing the nature of the criminal activity, the

court was mostly concerned with whether the activity was

ongoing, such that "time is of less significance" (citation

omitted). Id. As to the nature of the item being sought, the

7 While the Guastucci court recognized that the child
pornography context was somewhat unique, the court's discussion
of general principles is nevertheless highly instructive for the
issue before us.
13

court distinguished between items that are "perishable, readily

disposable, or transferrable" -- such as illegal drugs -- and

items that are "durable, of enduring use to [their] holder, and

not inherently incriminating." Id. at 28. The latter type of

item "might reasonably be found in the same location several

weeks later." Id. Importantly, the court cited a case

involving firearms as an example of the latter, more durable

items. Id., citing Commonwealth v. Beliard, 443 Mass. 79, 84-85

(2004) (six week old information concerning firearm was not

stale).

Applying the framework and analysis of Guastucci we are

satisfied, although the case is a close one, that at the time of

the defendant's arrest probable cause existed to search those

areas where the defendant might reasonably have secured the gun

he used the night of the murder -- including the backpack he was

carrying on his person. As to the "nature of the item,"

firearms are durable and of enduring value to their holder.

They are not frequently or easily transferred or discarded. Cf.

United States v. Neal, 528 F.3d 1069, 1074 (8th Cir. 2008)

("Information that someone is suspected of possessing firearms

illegally is not stale, even several months later, because

individuals who possess firearms tend to keep them for long

periods of time"). Notably, here there was no evidence the

defendant had reason to believe the police were looking for him
14

in connection with the Parham murder, and thus no urgent reason

to dispose of the firearm used on the night of the killing. Cf.

Beliard, 443 Mass. at 85 (evidence of weapons' location not

stale where no evidence defendant knew weapons had been

identified to police). The investigation had unfolded over

time, aided by the serendipitous research of an eyewitness not

known to the defendant.

Moreover, the police were aware that the defendant had been

arrested carrying a firearm at least twice before, in 1998 and

2005. While those arrests were dated, they are not irrelevant

to the probable cause calculus; that the defendant was known to

carry a firearm adds weight to the inference that the defendant

might be carrying the weapon used in the crime when he was

located three months after the murder. Put differently, these

facts go to the first factor identified in Guastucci -- whether

the defendant's criminal activity was ongoing, rather than a

single occurrence.8

8 The above facts collectively distinguish this case from
Commonwealth v. Hart, 95 Mass. App. Ct. 165, 169 (2019), in
which we held, on the bare facts there presented, that "a single
observation of a firearm in a residence sixty days prior to the
application for a search warrant does not establish probable
cause that firearms, ammunition, and related materials would be
found at that residence." This case does not involve a single
observation of a firearm sitting in a residence -- it involves
observation of the firearm in use, and returned to the
defendant's person. Indeed, in Hart, we emphasized that
"[t]here was no assertion that the gun was used to commit a
recent armed offense or was linked to any ongoing course of
15

In short, the touchstone of the Fourth Amendment is

reasonableness; here there was a "reasonable likelihood" that

the defendant still had the gun he had used, and that the

defendant would keep that gun on his person or somewhere it was

readily available. There was probable cause to search those

areas when the defendant was arrested on November 5, 2017; a

warrant would have been required to search the defendant's home,

but no warrant was required to search the backpack located in

the car in which he was apprehended.

Finally, our conclusion that there was probable cause to

search the defendant's backpack is also consistent with cases

from other jurisdictions. See United States v. Ponzo, 853 F.3d

558, 573 (1st Cir. 2017), cert. denied, 583 U.S. 1115 (2018),

quoting United States v. Singer, 943 F.2d 758, 763 (7th Cir.

1991) (four month old information regarding defendant's

possession of gun not stale, as "firearms . . . are durable

goods useful to their owners for long periods of time"); State

v. Marcotte, 123 N.H. 245, 248-249 (1983) (purchase of firearm

four months previously sufficient probable cause to obtain

warrant to search defendant's home). The motion to suppress the

firearm was properly denied.

conduct." Id. at 168. Notably, the Supreme Judicial Court in
Guastucci also distinguished Hart, as based on "a context-
specific inquiry dependent on all the circumstances set forth in
the affidavit." Guastucci, 486 Mass. at 28 n.3.
16

2. The Commonwealth's peremptory challenges. Next, the

defendant argues that the Commonwealth's peremptory challenges

violated the equal protection clause of the United States

Constitution. The defendant focuses on four challenges in

particular -- to jurors nos. 13, 46, 47, and 135. Although each

of these potential jurors were persons of color, the defendant

does not claim that the Commonwealth's challenges were

inappropriately based on race. Rather, he complains that the

Commonwealth justified its challenges to three of these four

jurors based on the young age and inexperience of the potential

juror. The defendant argues that peremptory challenges

exercised on the basis of youth can effectively be used to

exclude all Black jurors, thereby depriving young Black

defendants of a "jury of [their] peers."9

9 During empanelment, the Commonwealth exercised peremptory
challenges to jurors nos. 13, 46, 47, and 135. The defendant
objected to each challenge based on the Batson-Soares standard
for juror selection. See Batson v. Kentucky, 476 U.S. 79
(1986); Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444
U.S. 881 (1979), overruled in part by Commonwealth v. Sanchez,
485 Mass. 491, 511 (2020). Juror no. 13 was Hispanic, juror no.
46 was Black, juror no. 47 was Filipino, and juror no. 135 was
described as a female "minority." The Commonwealth justified
its challenges to jurors nos. 13, 46, and 135 on the basis of
age and inexperience. The Commonwealth's challenge to juror no.
47 was based on concerns about her impartiality.

As the defendant argues that the Commonwealth's
justifications of peremptory challenges based on age deprived
him of a jury of his peers, and the Commonwealth did not justify
its challenge to juror no. 47 on the basis of age, the
defendant's argument is inapplicable to juror no. 47.
17

The defendant's argument is foreclosed by established case

law. His argument amounts to an assertion that, because

peremptory challenges based on the age of the potential juror

may result in the exclusion of members of minority groups, those

peremptory challenges are unconstitutional. However, it is

well-established, both in this Commonwealth and under Federal

law, that "age is not a discrete grouping defined in the

Constitution, and therefore a peremptory challenge may

permissibly be based on age." Commonwealth v. Oberle, 476 Mass.

539, 545 (2017). See Commonwealth v. Grier, 490 Mass. 455, 462-

463 (2022); Commonwealth v. Fernandes, 487 Mass. 770, 775-776

(2021), cert. denied, 142 S. Ct. 831 (2022); Commonwealth v.

Lopes, 478 Mass. 593, 597 (2018); United States v. Cresta, 825

F.2d 538, 545 (1st Cir. 1987), cert. denied, 486 U.S. 1042

(1988) ("young adults" not "cognizable group" under equal

protection clause). Furthermore, there is no evidence in the

record to suggest that the Commonwealth engaged in a pattern of

discrimination against protected groups in its exercise of

peremptory challenges. Indeed, as of the second day of jury

selection, six Black jurors had already been seated. We discern

no impropriety in the Commonwealth's justification of its

peremptory challenges based on the young age of jurors nos. 13,

46, and 135.
18

3. Use of surveillance footage during eyewitness

testimony. Finally, the defendant argues that the judge

committed prejudicial error by allowing the Commonwealth to show

video surveillance footage to the eyewitness during his

testimony, because (allegedly) the process amounted to leading

the witness and causing him to alter and to improve upon his

testimony. Upon review of the record, we find that there is no

basis on which to conclude that prejudicial error occurred.

A trial judge "has broad discretion in making evidentiary

rulings" (citation omitted). Commonwealth v. Martinez, 476

Mass. 186, 190 (2017). "We review a judge's evidentiary rulings

for an abuse of discretion." Commonwealth v. Welch, 487 Mass.

425, 440 (2021), quoting Commonwealth v. Andre, 484 Mass. 403,

414 (2020). When an objection is preserved at trial, as here,

we review for prejudicial error. See Commonwealth v. Reyes, 483

Mass. 65, 78 (2019), citing Commonwealth v. Vargas, 475 Mass.

338, 348 (2016). An error is prejudicial if it raises a

"reasonable possibility that the error might have contributed to

the jury's verdict." Commonwealth v. Alphas, 430 Mass. 8, 23

(1999) (Greaney, J., concurring).

Here, the prosecution played several brief clips of

surveillance videos of the scene during direct examination of

the eyewitness. The video playback was paused on several

occasions. The witness provided testimony during intervals
19

between video clips. During the first interval, after a clip of

one video recording had played for roughly thirty seconds, the

witness provided certain details regarding his movements before

the shooting, and recounted hearing gunshots and seeing people

running outside his window. He referred to a map of the area

and identified and located his lines of sight. He described one

of the individuals he observed at the scene (the victim) as

wearing a baseball cap and red sneakers. The prosecution then

played approximately thirty additional seconds of video footage,

after which the witness described one of the shooters as a tall

and "husky" Black man, who was wearing a black baseball hat,

white T-shirt, and shorts.

While the witness provided further details of his

observations after the prosecution played the additional thirty

seconds of video footage, we are not persuaded that the

examination constituted impermissible leading. The witness's

testimony, as a whole, sufficiently demonstrated that he had

personal knowledge of the events to which he testified, as he

observed them from his window. The defendant would have us

conclude that the witness's testimony provided during the

intervals between video clips was led by the video footage that

he had been shown, but on the record before us, which includes

the relevant video clips, we are not persuaded that the witness

was impermissibly led by the clips rather than testifying from
20

his own memory. Furthermore, any variances from the witness's

prior testimony or his prior statements could of course be

explored through cross-examination. See Commonwealth v. Pina,

481 Mass. 413, 429 (2019), citing Mass. G. Evid. § 701 (2018)

("[a] lay witness is permitted to identify an individual

depicted in a video or photograph if that testimony would assist

the jurors in making their own independent identification").

Judgments affirmed.