Commonwealth v. James Bennett.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-53

COMMONWEALTH

vs.

JAMES BENNETT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant,

James Bennett, was convicted of possessing a firearm without a

license, subsequent offense, in violation of G. L. c. 269,

§ 10 (a), (d) (2015).1 In this direct appeal, the defendant

claims reversible error in (1) the denial of his motion to

suppress, (2) the trial judge's not conducting a voir dire of an

allegedly sleeping juror, (3) the absence of a firearm licensure

jury instruction, and (4) the prosecutor's closing argument. We

affirm.

1Before trial, the defendant pleaded guilty to the charge
of possession of a class B substance. Following the jury's
verdict of guilty of unlawful possession of a firearm, the
defendant pleaded guilty to the subsequent offense portion of
the firearm conviction.
Background. We summarize the facts as found by the motion

judge following an evidentiary hearing. We note additional

evidence presented at trial, reserving further facts for later

discussion.

At just before 1 A.M., State police Trooper Adam Cardin,

who testified at the evidentiary hearing, saw a black Ford

Taurus on Interstate Highway 91 traveling only ten feet behind

the car in front of it. Smoke was coming from the hood of the

Taurus, and the trooper heard a noise consistent with there

being a hole in the exhaust. The trooper followed the Taurus

and saw the car's front and rear passenger's side tires cross

over the white "skip-line." At that point, the trooper

activated his emergency lights and pulled over the Taurus.

Trooper Cardin positioned his cruiser right behind the

Taurus, about ten feet from its two occupants; turned on his

spotlight, illuminating the inside of the car; and approached

the passenger's side. When the trooper reached the car, he

asked the driver, the defendant, for his license and

registration. The defendant said that he had a learner's

permit, but that he did not have it with him. The defendant

handed the trooper a Massachusetts identification card, but did

not have the car's registration. The defendant told the trooper

that the car belonged to a male friend from Connecticut.

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Seeking to determine if the car could be driven away,

Trooper Cardin then asked the passenger for her license, which

he received. The trooper explained that the defendant might not

be able to continue driving if the trooper could not verify the

defendant's learner's permit, or the car would need to be towed

if the passenger did not have a valid license. The defendant's

demeanor, which the trooper testified had previously been "very

calm," changed; the defendant suddenly seemed "not

argumentative, but . . . very concerned," with a "glazed over

look" on his face.

While the defendant and passenger stayed in the car,

Trooper Cardin walked back to his cruiser to run a query on the

defendant's driving status, the passenger's driving status, and

the registration of the Taurus. When he input the defendant's

identification number,2 the trooper received a notification

showing that the defendant had a prior firearm conviction.3 At

the motion hearing, Trooper Cardin testified that he did not

2 The trooper testified on cross-examination that he queried
the defendant's "driver's license number," which we conclude was
a misstatement as the defendant had produced an identification
card and said he had no driver's license.

3 The motion judge further found that "[t]he query also
indicated that the Taurus was registered to a female in
Springfield." The testimony reflected that this fact was
determined "at some point." Because it is not clear from the
record when the trooper learned this fact, we do not consider it
in our analysis.

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remember the age of the firearm conviction. The arrest report

attached to the defendant's motion to suppress stated that the

defendant's firearm conviction was from February 3, 2003, but

Trooper Cardin did not testify to this fact, and the motion

judge did not find it.

The motion judge found that as Trooper Cardin ran the query

in his cruiser, he noticed the defendant "moved his body in the

seat but attempted to keep his head and torso still while facing

forward." The defendant "then raised his shoulders, reached

out, and made three motions toward the passenger side of the

Taurus." The defendant's movements "were not natural and

appeared to be an attempt to discard or retrieve something."

After seeing the defendant's movements, Trooper Cardin

called for backup as he was concerned for his safety. He

testified, "It's at that point being alone on the side of the

road, seeing what's going on with the movements and then seeing

prior convictions, it obviously brought some concern to me for

my safety and well-being." He was also concerned because it was

dark, it was the middle of the night, and the defendant's

demeanor had changed.

Two additional troopers arrived within five minutes.

Trooper Cardin approached the driver's side of the Taurus and

issued an exit order to the defendant and passenger. A patfrisk

of both revealed no contraband. The defendant and passenger

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were moved to the guard rail next to the car. Trooper Cardin

entered the Taurus and inspected the center console, but did not

find any contraband. As the motion judge found, Trooper Cardin

then "looked directly underneath the front passenger seat next

to the center console and found a gun."

The defendant was handcuffed, arrested, and read Miranda

warnings by Trooper Cardin. Trooper Cardin searched the

defendant before putting him in the cruiser and found a bag

filled with what the trooper believed to be cocaine.

The motion judge concluded that the stop was lawful as it

was based on Trooper Cardin's "observation that the vehicle was

not maintaining a safe traveling distance, experiencing

equipment malfunctions, and veered across the white line with

two tires." The motion judge also concluded that safety

concerns justified the exit order. The judge found reasonable

the trooper's belief that the defendant or passenger was armed

"based upon [the trooper's] observation of [the defendant's]

change in demeanor, movements within the car, and [the

defendant's] prior firearm conviction." The judge also held

that the trooper's protective sweep of the Taurus was

"sufficiently limited in scope" and confined to the area in

which the defendant was reaching.

After the motion judge denied the defendant's motion to

suppress, the defendant was convicted at trial. At trial, four

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witnesses testified, including Trooper Cardin and State police

Trooper Emily Nugent, who responded to Trooper Cardin's call for

backup. In particular, Trooper Nugent testified, without

objection or cross-examination, that neither the defendant nor

the passenger had either a license to carry a firearm or an FID

card. The defendant did not testify. The defendant's timely

appeal followed his conviction.

Discussion. 1. Denial of motion to suppress. "'In

reviewing a ruling on a motion to suppress evidence, we accept

the judge's subsidiary findings of fact absent clear error,' and

we defer to the judge's determination of the weight and

credibility to be given to oral testimony presented at a motion

hearing." Commonwealth v. Hoose, 467 Mass. 395, 399 (2014),

quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001).

"[F]indings drawn partly or wholly from testimonial evidence are

accorded deference, and are not set aside unless clearly

erroneous," Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018),

and "[w]e conduct an independent review of the judge's

application of constitutional principles to the facts found,"

Hoose, supra at 400. Accord Commonwealth v. Catanzaro, 441

Mass. 46, 50 (2004).

There is no dispute that the initial stop of the

defendant's car was valid. See Commonwealth v. Santana, 420

Mass. 205, 207 (1995); Commonwealth v. Monell, 99 Mass. App. Ct.

6
487, 489 (2021). Rather, the defendant maintains that

(1) Trooper Cardin unreasonably prolonged the stop by

"immediately querying [the defendant's] criminal record,"

(2) the trooper impermissibly ordered the defendant to exit the

car absent a reasonable belief that the trooper's safety was

threatened, and (3) the limited search of the car for weapons

exceeded its permissible scope. We are not persuaded.

a. Length of stop. "A routine traffic stop may not last

longer than 'reasonably necessary to effectuate the purpose of

the stop.'" Commonwealth v. Cordero, 477 Mass. 237, 241 (2017),

quoting Commonwealth v. Amado, 474 Mass. 147, 151 (2016). "The

nature of the stop, i.e., for a traffic offense, defines the

scope of the initial inquiry by a police officer." Commonwealth

v. Buckley, 478 Mass. 861, 873 (2018), quoting Commonwealth v.

Bartlett, 41 Mass. App. Ct. 468, 470 (1996).

Here, Trooper Cardin's driving status query resulted in a

"pop[] up" notification of the defendant's prior firearm

conviction. The trooper's actions were tied to the traffic

violations that were the basis of the stop. The trooper did not

run a separate criminal records check. Thus, the stop was not

unreasonably prolonged.

b. Exit order. An exit order is justified where the

police "are warranted in the belief that the safety of the

officers or others is threatened." Commonwealth v. Torres-

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Pagan, 484 Mass. 34, 38 (2020). "[I]t does not take much for a

police officer to establish a reasonable basis to justify an

exit order or search based on safety concerns." Commonwealth v.

Gonsalves, 429 Mass. 658, 664 (1999). "The justification for an

exit order does not depend on the presence of an 'immediate

threat' at the precise moment of the order, but rather on the

safety concerns raised by the entire circumstances of the

encounter." Commonwealth v. Stampley, 437 Mass. 323, 328

(2002). "A police officer need point only to some fact or facts

in the totality of the circumstances that would create a

heightened awareness of danger as to warrant an objectively

reasonable officer in securing the scene in a more effective

manner." Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212

(2013).

Here, Trooper Cardin first saw a marked change in the

defendant's demeanor, from calm to concerned, after telling him

that the car might need to be towed. Then the trooper saw the

defendant make suspicious, unnatural movements, seeming to

discard or retrieve something near the passenger. At the same

time, a query of the defendant revealed a firearm conviction.

It was the middle of the night and the trooper was alone. These

facts caused "a heightened awareness of danger that would

warrant an objectively reasonable police officer" to fear for

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his safety. Monell, 99 Mass. App. Ct. at 490, quoting Stampley,

437 Mass. at 326. The exit order was lawful.

c. Limited search of car. "Where an officer has issued an

exit order based on safety concerns, the officer may conduct a

reasonable search for weapons in the absence of probable cause

to arrest." Amado, 474 Mass. at 152. "Such protective searches

are reasonable if 'confined to what is minimally necessary to

learn whether the suspect is armed and to disarm him once the

weapon is discovered.'" Id., quoting Commonwealth v. Almeida,

373 Mass. 266, 272 (1977). "We examine the facts not in

isolation, but as they reasonably and objectively appeared in

the context of the ongoing encounter." Rosado, 84 Mass. App.

Ct. at 212.

Here, "[o]nce the defendant was removed from the car and no

weapon was discovered during the patfrisk of his person, the

[troopers] were justified in their concern that a weapon might

remain in the car." Monell, 99 Mass. App. Ct. at 491. The

limited search of the car was brief and restricted to the area

where the defendant had just been seen reaching. The sweep of

that area of the car was justified, not prolonged, and

appropriately limited.

2. Juror concerns. The defendant further argues that the

trial judge abused her discretion in not conducting a voir dire

of a juror who may have been sleeping. We are not persuaded.

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During a sidebar on the first day of trial, the trial judge

raised an "issue" that a juror "appeared to be sleeping." The

judge stated that the juror "clearly was nodding off," so the

judge had asked the court officer to "step over there, [and]

maybe bang on the wall if it was necessary." The judge also

stated that that was "why I dropped my book" and that "dropping

the book woke [the juror] up." The Commonwealth suggested

taking a break, but the judge stated that they would go "a

little bit further" and then take a break, that she was "trying

to keep an eye on it," and requested that the attorneys "keep an

eye on it as well." Neither attorney objected to the proposed

course of action or requested a voir dire of the juror. No one

mentioned the issue again.

"[A] judicial observation that a juror is asleep, or a

judge's receipt of reliable information to that effect, requires

prompt judicial intervention." Commonwealth v. McGhee, 470

Mass. 638, 643-644 (2015), quoting Commonwealth v. Beneche, 458

Mass. 61, 78 (2010). Accord Commonwealth v. Dancy, 75 Mass.

App. Ct. 175, 181 (2009). If the trial judge receives reliable

information "suggesting that a juror was asleep or otherwise

inattentive," Commonwealth v. Villalobos, 478 Mass. 1007, 1007

(2017), quoting McGhee, supra at 644, the appropriate

intervention "typically involves 'conduct[ing] a voir dire of

the potentially inattentive juror, in an attempt to investigate

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whether that juror remains capable of fulfilling his or her

obligation to render a verdict based on all of the evidence.'"

Commonwealth v. Ralph R., 490 Mass. 770, 777 (2022), quoting

Villalobos, supra at 1008. "Judges have substantial discretion

in this area." McGhee, supra. "[N]ot every instance of juror

inattentiveness calls for a voir dire." Ralph R., supra at 778.

Where, as here, the defendant contends that the trial

judge's response was inadequate, "[t]he burden is on the

defendant to show that the judge's response to information about

a sleeping juror was arbitrary or unreasonable." Villalobos,

478 Mass. at 1008, quoting McGhee, 470 Mass. at 644. Because

the defendant did not object at trial, we review to determine

whether any error created a substantial risk of a miscarriage of

justice. See Ralph R., 490 Mass. at 785-786.

The defendant has not met his burden. After observing the

juror "nodding off," the trial judge reacted appropriately and

promptly by making a loud noise that "woke [the juror] up." See

Ralph R., 490 Mass. at 778 (judge's failure to conduct voir dire

of juror with head down and eyes closed was not abuse of

discretion where judge intervened by asking jury if they could

see screen and noted juror was looking "within seconds" of

intervention). She also asked a court officer to make a loud

noise if necessary, said she would "keep an eye on it," and

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instructed counsel to do the same. There was no abuse of

discretion.

As to the defendant's argument that the juror's "lapse in

alertness . . . spanned important aspects" of Trooper Cardin's

testimony, that contention is speculative. The record does not

show that the trial judge, or any party, saw the juror being

inattentive for a long time, or that the juror had indeed been

sleeping. See Dancy, 75 Mass. App. Ct. at 182. See also

Commonwealth v. Alleyne, 474 Mass. 771, 778 (2016) (absence of

objection and agreement to judge's plan regarding juror

"struggling to stay awake . . . indicat[ed] that neither [party]

considered the suggestion of monitoring to be particularly

prejudicial"). Contrast McGhee, 470 Mass. at 645 (reliable

report of juror snoring loudly during testimony of two victims

required inquiry).

3. Jury instruction on licensure. We are similarly

unpersuaded by the defendant's contention that he is entitled to

a new trial because the trial judge did not instruct the jury

that the lack of licensure is an essential element of unlawful

possession of a firearm. See Commonwealth v. Guardado, 493

Mass. 1, 2-3, 6-8, 12 (2023), cert. denied, 144 S. Ct. 2683

(2024) (Guardado II).4

4 This court stayed the briefing in this appeal pending the
decision in Guardado II.

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We must determine whether the absence of a licensure jury

instruction "was harmless beyond a reasonable doubt."

Commonwealth v. Bookman, 492 Mass. 396, 401 (2023), quoting

Commonwealth v. D'Agostino, 421 Mass. 281, 287 (1995). It was.

Here, as in Bookman, 492 Mass. at 401, the Commonwealth

presented uncontested evidence, in the form of Trooper Nugent's

testimony, that the defendant did not have a license to carry a

firearm.5 It was not necessary that the defendant admit to not

having a license. See id. (police officer's undisputed

testimony that neither defendant nor codefendant had license for

firearm rendered lack of instruction harmless where officer's

credibility was not in question). Indeed, although we do not

rely on the point, it is very unlikely that the defendant could

have disputed Trooper Nugent's testimony because the defendant

is prohibited by his prior criminal record from being permitted

a license to carry a firearm. See G. L. c. 140, § 131 (d)

(2018).

To the extent that the defendant maintains that Guardado II

renders this uncontested evidence inadequate, we decline to so

5 Trooper Cardin also testified that the defendant did not
have a license to carry a firearm or an FID card. On appeal the
defendant suggests that his attacks on the credibility of
Trooper Cardin's testimony about his observations rendered his
testimony about licensure unreliable. We need not resolve this
point, given Trooper Nugent's testimony.

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rule.6 Recent cases do not support such an interpretation. See,

e.g., Commonwealth v. Francis, 104 Mass. App. Ct. 593, 604 &

n.13 (2024) (failure to instruct on licensure requirement

harmless beyond reasonable doubt, and evidence sufficient, where

detective gave uncontested testimony that defendant was not

licensed to possess firearm).

Accordingly, the failure to instruct the jury on licensure

was harmless beyond a reasonable doubt, and the defendant is not

entitled to a new trial.

4. Prosecutor's closing argument. Finally, the defendant

challenges the prosecutor's assertions in closing that the

defendant had pulled the gun from "his person" or "his body"

during the movements seen by Trooper Cardin. We discern no

error.

"In closing argument, '[p]rosecutors are entitled to

marshal the evidence and suggest inferences that the jury may

draw from it.' Those inferences need only be reasonable and

possible" (citations omitted). Commonwealth v. Roy, 464 Mass.

818, 829 (2013). We review to determine whether there was error

and, if so, as the defendant did not object, whether the error

6 The defendant also maintains that we should not consider
his failure to object to or dispute Trooper Nugent's testimony
because, at the time of trial, he could not have been aware of
the need to prove lack of licensure. The same was true,
however, in Bookman, 492 Mass. at 401, so we are unpersuaded by
this argument.

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created a substantial risk of a miscarriage of justice. See

Commonwealth v. Daigle, 379 Mass. 541, 549 (1980).

At trial, Trooper Cardin testified that while he was

running the query, he noticed that the defendant was moving his

lower body while keeping his shoulders and head at the same

height and still facing forward. The defendant then reached

across to the front passenger's side with three distinct "tug-

of-war movement[s] towards the passenger side over the center

console seat" into the left-leg area of the front passenger's

side. The passenger was not moving during the defendant's

actions. The trooper also demonstrated the defendant's

movements to the jury.

Trooper Cardin testified that after these movements, he was

concerned for his safety. Minutes later, after backup arrived,

a firearm was recovered on the floor between the front

passenger's side seat and center console, where the trooper had

seen the defendant move his hand and which was easily accessible

to the defendant. The trooper also testified that firearms like

the one in this case are commonly hidden in a waistband or

undershirt.

In light of this testimony, the prosecutor's statements

arguing that the defendant had the firearm "on his person" and

on "his body," including the single statement that the defendant

pulled the firearm from his waistband, were reasonable

15
inferences based on the evidence, and not error. We note that

the prosecutor twice stated that she "suggest[ed]," based on the

facts in evidence, that the defendant had a firearm that he

pulled from his person. Seeing no error, we need go no further.

Judgments affirmed.

By the Court (Sacks, Shin &
Hershfang, JJ.7),

Clerk

Entered: May 12, 2025.

7 The panelists are listed in order of seniority.

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